Wilton Carraway v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

The petitioner, Wilton Carraway, seeks habeas corpus relief from incarceration resulting from his plea of nolo contendere to assault first degree, in violation of General Statutes § 53a–59(a)(1).   For this crime, he received a sentence of fifteen years imprisonment, suspended after the service of seven years, and probation.   He contends that his trial counsel, Attorney William Watson, rendered ineffective assistance and that this assistance denied the petitioner due process.

Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims.  Johnson v. Commissioner, 218 Conn. 403, 425 (1991);  Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992).   The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different.  Id.

As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness.  Johnson v. Commissioner, supra.   This standard of reasonableness is measured by prevailing, professional norms.  Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation.  Id.

The United States Supreme Court has also set forth the prejudice standard for weighing ineffective assistance claims with respect to the entry of guilty pleas.  Hill v. Lockhart, 474 U.S. 52, 59–60 (1985).   The criterion for the prejudice prong announced in Hill v. Lockhart, supra, was incorporated into our habeas law.  Copas v. Commissioner, 234 Conn. 139, 156–57 (1995).   Under these cases, the habeas petitioner must show that, but for counsel's unprofessional representation, the petitioner would have elected to have a trial rather than plead guilty and that the outcome was likely to be more successful.  Id., 151.

Originally, the petitioner faced charges of kidnapping and assault third degree as well as the assault of first degree allegation.   These charges arose because in the early hours of September 21, 2006, in the parking lot of a bar which had closed for the night, the petitioner discovered his former girlfriend, Jessica Balisciano, being intimate with Brendan Connolly in the back seat of Connolly's car.

Connolly gave a statement to the Southington police in which he described how the petitioner suddenly opened the car door, struck Connolly on the left side of his head with a steel object, pulled Connolly from the vehicle, and, despite Connolly's attempts to defend himself, struck him again with the instrument in the nose.   Connolly thought the weapon was similar to a tire iron.   The petitioner then focused his anger on Balisciano, pulling her from the car, seizing her by the hair and neck, dragging her to the passenger side of her car, and throwing her into the passenger seat despite Balisciano's protests and pleading.   The petitioner entered the driver seat, started the car, and sped off.   Although disoriented, Connolly was able to drive his own car home.

The petitioner testified that, while he did brandish a fireplace poker, he never struck Connolly with it, but, instead, delivered blows with his fists.   He contends that any injuries to Balisciano were inadvertent in his haste to extricate her from the scene.   He admitted that he drove her to a motel rather than to their shared residence, that he employed an alias to check into the motel, and that he called upon a friend to drive the petitioner and Balisciano to the friend's residence.

On October 9, 2006, Balisciano gave a sworn statement to the Southington police in which she characterized the petitioner as her former boyfriend.   She corroborated Connolly's recollection that the petitioner opened the rear door of Connolly's car and pulled him out.   While Connolly was lying on the ground, the petitioner reached into Connolly's vehicle, grabbed Balisciano's legs and yanked her out causing her head and back to hit the pavement with force.   The petitioner also struck her with his hand and compelled her to relinquish her car keys to him.   He then dragged her to her car and threw her into the passenger seat.   He drove off, and she demanded to be taken to a hospital.   The petitioner refused and drove to a motel.   At the motel the petitioner excoriated her lack of morals and threatened that she would never leave the room alive.   Eventually, they went to the home of a friend of the petitioner and ended up at their residence.   Later that day, Balisciano sought medical care at Midstate Hospital where, in addition to cuts and bruises, she was diagnosed with a concussion.   She observed that the fireplace poker had been bent since she last saw it two weeks before the attack.

It is uncontroverted that Connolly was taken by family members to Bradley Memorial Hospital at around 2:30 a.m. on the day of the assault.   It was determined that he had sustained lacerations on the left side of his head, a fractured skull and a subdural hematoma correlative with the skull fracture, and a broken nose.   Connolly's version of events given to medical staff was consistent with his sworn statement to the police.   Later that day, Connolly was transferred to the ICU at New Britain General Hospital.   He received antiseizure medication and pain suppressants.   After a period of observation and repeated CT scans, he was released shortly after noon on September 22, 2006.   Connolly was ambulatory throughout his hospital stays although medical staff directed that he avoid standing.

In his criminal case, the petitioner originally hired Attorney Carty to represent him.   The prosecutor had consistently offered to recommend a sentence of twenty years incarceration, suspended after ten years, in exchange for pleas to assault first degree and unlawful restraint.   The petitioner consistently rejected these offers.   He became disenchanted with counsel and hired Attorney Watson to represent him.   Attorney Watson's performance is the subject of the ineffective assistance claim in this habeas action.

The petitioner specifically alleges that Attorney Watson rendered substandard representation by failing to discuss the elements of assault first degree under § 53a–59(a)(1) with the petitioner before his nolo contendere plea;  by failing to advise the petitioner as to the factual basis for that charge;  by failing to consult with or retain a medical expert to review Connolly's medical records;  by failing to discover the actual injuries sustained by Connolly;  and by failing to advise the petitioner that the medical records did not support the crime of assault using a dangerous instrument.

Due Process Claim

The amended petition contains a second count captioned “Due Process/Involuntary Plea.” However, this count merely repeats the allegations of the ineffective assistance claim of the first count.   Labeling an ineffective assistance claim as a violation of due process serves no legal purpose.   Effective assistance of counsel in a criminal proceeding is a right guaranteed by the Sixth Amendment of the U.S. constitution and article first, § eight, of the Connecticut constitution, Where a particular constitutional provision affords protection against a particular sort of governmental behavior, that constitutional provision, rather than the more generalized notion of due process, is the proper guide for analyzing that claim.  ATC Partnership v. Windham, 251 Conn. 597, 610–11 (1999).   The second count, being entirely duplicative of the ineffective assistance allegations of the first count, is dismissed.

Ineffective Assistance Claim

It is easier to dispose of an ineffective assistance claim for failure to satisfy the prejudice prong of the Strickland standard, as modified for guilty pleas by Hill, then the habeas court may address that issue directly.   Pelletier v. Warden, 32 Conn.App. 38, 46 (1993).   At the habeas trial, the petitioner presented the testimony of Barbara Levin, a clinical, trauma nurse with training and experience in the field of forensic medicine regarding the causes of traumatic injury.   She pointed out that, because of a coding error in the hospital records, those records mistakenly indicated that Connolly was comatose for a period of days.   Actually, he never fell into a coma.   He was conscious, alert, oriented, and ambulatory throughout his hospital stays, although he had reported a brief loss of consciousness and disorientation right after he was struck by the petitioner.

Perhaps more significantly, Ms. Levin opined that the nature of the wound adjacent to the skull fracture was consistent with the petitioner's version of a blow by his fist rather than an elongated instrument such as a tire iron.   If such a weapon had caused the fracture, one would have expected the depression of the skull into the brain to have been deeper and longitudinal rather than circular, as was noted by hospital staff.

As previously stated, the petitioner pleaded nolo contendere to violating § 53a–59(a)(1).   That subsection requires use of a dangerous instrument.   The petitioner argues that, but for Attorney Watson's unprofessional failure to engage a medical consultant, such as Ms. Levin, and resultant failure to discover that Connolly's hospital reports supported the petitioner's rather than Connolly's description of the attack, the petitioner never would have changed his plea and foregone a jury trial.

However, under the prejudice component of Strickland, as modified by Hill, the petitioner must also prove, by a preponderance of the evidence, that there exists a reasonable probability that the results at a trial would have been more favorable.  Copas v. Commissioner, 234 Conn. 139, 151 (1995);  State v. Aquino, 89 Conn.App. 395, 408 (2005).

In this case, shortly before trial, Jessica Balisciano sent emails to the petitioner of a sexually provocative nature.   Her willingness to reconnect with the petitioner suggests that she might have been less than cooperative with the state at trial.   Attorney Watson discussed this development with the prosecutor and the presiding judge at a pretrial discussion.   The prosecutor was willing to allow the petitioner to plead to assault first degree, pertaining to the attack on Connolly, and to nolle the charges relating to Balisciano.   However, the prosecutor persisted in his recommendation of the ten years of imprisonment.   The judge indicated that she was likely to impose a sentence of fifteen years, execution suspended after the service of seven years, and that was the sentence which was imposed.   The prosecutor also stressed that if the petitioner declined the offer, he was prepared to amend the information to add a count of attempted murder based on Connolly's statements.

The court finds that the petitioner has failed to prove that expert testimony, such as that of Ms. Levin, creates a reasonable probability of a more favorable outcome for the petitioner.   Even if Ms. Balisciano retracted her accusations against the petitioner, her sworn statements to the police on October 9, 2006, would have been admissible for substantive purposes under State v. Whelan, 200 Conn. 743, 753–54 (1986), cert. denied, 479 U.S. 994 (1986).   That statement, supported by the testimony of Connolly and Balisciano's hospital records, would have been very persuasive that she was assaulted and abducted by the petitioner.

Even if the factfinder determined that the state failed to prove, beyond a reasonable doubt, that the petitioner struck Connolly with a dangerous instrument, he admitted that he assaulted Connolly and fractured his skull and nose and caused a subdural hematoma.   The petitioner may very well have been convicted of assault first under a different subsection, such as § 53a–59(a)(3), which requires reckless indifference and a risk of death, or assault second or third degree.   Coupled with the charges pertaining to Balisciano's abduction and assault, a sentence exceeding seven years incarceration appears quite possible.

Also, as found to be the case by Attorney Watson, Connolly's statements to the police and hospital staff were consistent that the petitioner struck him with a metal object.   Levin's opinion, formulated well after the event and without examination of Connolly at the time of the injury, may not have created reasonable doubt that a dangerous instrument was used.   Because the medical reports disclosed no defensive wounds, Levin dismissed the possibility that the wounds were shallower than expected because Connolly did not receive the full brunt of a blow with such a weapon.   It is axiomatic that the factfinder would be free to reject any expert testimony.   The risk of conviction for assault first degree is heightened by the fact that Balisciano, in her sworn statement, observed that the poker held by the petitioner had sustained recent damage, even though Connolly stated that the poker was not the weapon that he believed the petitioner used.

The prejudice prong of Strickland–Hill cannot be proven through speculation as to a more favorable outcome.  Gonzalez v. Commissioner, 127 Conn.App. 454, 458 (2011).   The court concludes that the petitioner has failed to satisfy, by a preponderance of the evidence, the prejudice component of that standard for an ineffective assistance claim.   The petition is, therefore, denied.

Sferrazza, J.

Sferrazza, Samuel J., J.