Michael T. v. Warden (2012)

MEMORANDUM OF DECISION MOTION FOR BOND ON APPEAL

The petitioner, Michael T., seeks an order from the court that a bond be set on his case that is on appeal.   A hearing on the motion was held on November 1, 2011.   The parties were given the option of briefing the issues raised by the petitioner's motion.   The petitioner submitted his brief on November 29, 2011 and on November 30, 2011, the court was notified that no brief would be filed by the respondent.

PROCEDURAL HISTORY

This court concluded that the petitioner received ineffective assistance of counsel because of trial counsel's failure to use an expert witness on two distinct topics.   The respondent appealed the decision to the Appellate Court where that court affirmed this court's judgment with one judge filing a dissenting opinion.  Michael T. v. Commissioner, 122 Conn.App. 416, 999 (2010).

The respondent sought and was granted certification to appeal to the Supreme Court.  Michael T. v. Commissioner, 298 Conn. 911 (2010), limited to the following issue:  “Whether the Appellate Court properly held that trial counsel rendered deficient performance by failing to present expert testimony?”

The Supreme Court docket number is SC 18676.   Briefs have been filed at the Supreme Court, but the appeal has not been scheduled for argument.¹

The respondent unsuccessfully argued at the Appellate Court that deficient performance should not have been found by this court because (1) trial counsel's cross-examination of the state's witnesses at trial and his closing argument sufficiently informed the jury that nonsexual transmission of trich was possible;  (2) trial counsel may have made a tactical decision not to present expert testimony;  and (3) Dr. Sgroi's testimony would not have been admissible at trial.  Michael T. v. Commissioner of Correction, supra, 122 Conn.App. 423.   The respondent also questioned whether prejudice was shown by the petitioner.

The Appellate Court rejected two of the respondent's claims concerning deficient performance because “[e]xcept for stating ․ disagreement with the court's conclusion, the respondent has not proffered a reasoned basis for rejection of the court's analysis of these issues.”  Supra, at 424.   Without a reasoned basis for reversal, the Appellate Court was “not persuaded” to overturn the habeas court's judgment.   The Appellate Court also refused to overturn the habeas court on an unpreserved evidentiary challenge to the admissibility of Dr. Sgroi's testimony.  Id. The Appellate Court had not been presented with “a reasoned argument” challenging prejudice.   The Appellate Court found no reason to overturn the habeas court's decision on this issue.   Supra, at 424.

The Appellate Court's decision left standing the decision of the habeas court that under the facts of this case, trial counsel's performance was deficient because he did not “utilize an expert at all during the underlying proceedings, in particular during the criminal trial.”   Mem. Dec., at 23.   The habeas court noted the centrality of the medical issue to the case and the lack of overwhelming evidence.   This case was a credibility contest between the complaining witness and the defendant, along with the medical evidence that was not properly disputed.   The habeas court conducted a comparison of Dr. Sgroi's testimony with the bits of information extracted on cross-examination of the state's witnesses, and held that “the trial testimony was not comparable to Dr. Sgroi's, and not sufficient to convey to the jury the actual state of knowledge at the time of trial concerning nonsexual transmission of trich.”   Mem. Dec., at 5–15.

The Appellate Court found it unnecessary to reach the habeas court's second ground for granting relief, i.e., that deficient performance and prejudice had been shown based on trial counsel's failure to “utilize an expert at all during the underlying proceedings, in particular during the criminal trial” on the subject of proper forensic interviewing techniques and that tainting of testimony that results from improper techniques.   Mem. Dec., at 23;  Michael T. v. Commissioner of Correction, supra, 122 Conn.App. 417–18.

Judge Beach, in dissent, disagreed with the habeas court's determination that prejudice had been proven.  Id., 425.   The dissent began by comparing the evidence elicited at the criminal trial with that adduced at the habeas trial.  Id., 426.   In doing so the dissent relied upon what it represented as Dr. Sgroi's summary of her opinion, stating that nonsexual transmission is primarily sexually transmitted but that there are nonsexual ways for a child to acquire the infection.   The dissent then set forth some of Dr. Sgroi's testimony supporting her summary, and concluded with a statement that Murphy had testified at the criminal trial that trich was primarily sexually transmitted, but could also be transmitted nonsexually.  Id. 427.   This is the sole portion of Dr. Sgroi's testimony that the dissent then compared to the testimony from the criminal trial.   From this limited presentation of Dr. Sgroi's testimony, the dissent concluded that “because the essential points of Sgroi's opinion were raised by [trial counsel] in his cross-examination of the witnesses presented by the state, the jury had the essential information on the topic.”  Id., 433.   The dissent observed that both the prosecution and defense had argued that trich was primarily sexually transmitted, but that it could be nonsexually transmitted.   This, according to the defense was “the essence of Sgroi's opinion.”   Characterizing Dr. Sgroi's testimony as “additional testimony on the same topic,” the dissent found no reasonable probability that the outcome of the trial could have been different.   Based on this comparison of a summary of Dr. Sgroi's opinion with evidence located by “scouring,” Id., 427, the trial transcript, the dissent concluded that confidence in the verdict was not undermined.  Id., 434.

The dissent's legal analysis asserted that trial counsel's lapse in this case was not as serious as in the cases relied upon by the habeas court, including Siano v. Warden, 31 Conn.App. 94, 99–105, cert. denied, 226 Conn. 910 (1993), Gersten v. Senkowski, 426 F.3d 588, 608 (2d Cir.2005), cert. denied sub nom.  Artus v. Gersten, 547 U.S. 1191, 126 S.Ct. 2882, 165 L.Ed.2d 894 (2006), and Lindstadt v. Keane, 239 F.3d 191 (2d Cir.2001).

DISCUSSION

“The judicial branch has long had the power to submit a defendant to bail following conviction.   This power has existed in the judicial branch since the earliest days of Connecticut's statehood and even before.”  State v. McCahill, 261 Conn. 492, 510 (2002), citing State v. Beach, 2 Kirby (Conn.Sup.) 20, 21 (1786–87).   In addition, the habeas court has the inherent power to admit a petitioner to bail pending the outcome of his appeal from a dismissal of his habeas corpus writ in the absence of statutory authority.  Wayans v. Wolfe, 30 Conn.Sup. 60, 62–63 (1972).²

The authority to set bail in a post-conviction appeal has taken on constitutional stature by virtue of article first, section 10 of the Connecticut Constitution.   That provision guarantees the right of access to the courts and the right of redress.   It ensures that rights in existence prior to the enactment of the Connecticut constitution in 1818 shall continue to exist.   A common-law right in existence prior to 1818 is a “constitutionally incorporated common-law right.”  Gentile v. Altermatt, 169 Conn. 267, 286 (1975).

“The limitation previously referred to upon the legislature's ability to abolish common-law rights arises from the incorporation of those rights into our constitution by virtue of the adoption of article first, § 10 (formerly article first, § 12).   Simply stated, all rights derived by statute and the common law extant at the time of the adoption of article first, § 10, are incorporated in that provision by virtue of being established by law as rights the breach of which precipitates a recognized injury, thus being exalted beyond the status of common-law or statutory rights of the type created subsequent to the adoption of that provision.”  Gentile v. Altermatt, supra, 169 Conn. 286.

Judges of the Superior Court have exercised their inherent authority by setting appeal bonds in habeas appeals.   Miller v. Warden, 1996 Conn.Super. LEXIS 958 (Superior Court April 10, 1996) (Bishop, J.), affirmed Miller v. Commissioner, 242 Conn. 745 (1997) (“the court has an inherent power to issue an order admitting a petitioner to bail.  Gaines v. Manson, 194 Conn. 510, 529 (1984);  Carino v. Watson, 171 Conn. 366 (1976)”).   In Miller the Court concluded, “habeas lies to enforce the right of personal liberty;  when that right is denied and a person confined, the petitioned court has the power to release him.”   Miller, 1996 Conn.Super. LEXIS 958 (citations omitted).   Similarly in Gould v. Commissioner, 301 Conn. 544, 556 & n.13 (2011), the habeas court granted the successful petitioner's bail pending the outcome of the respondent's appeal.   In that case the partial granting of the petitioner's motion to terminate the usual appellate stay was subsequently amended to a grant of bail with electronic monitoring pending respondent's appeal.  Id.³

The petitioner has sought an appeal bond rather than moving to terminate the automatic stay arising under C.P.B. § 61–11.   Any “proceedings to enforce or to carry out the underlying judgment ․ violat[e] ․ Practice Book § 61–11(a).”  All Seasons Servs. v. Guildner, 89 Conn.App. 781, 782–83 (2005).   Thus, a stay bars any action to enforce the judgment or put it into action.   See RAL Momt. v. Valley View Assocs., 278 Conn. 672, 683–85 (2006) (stay prohibits acts to enforce the judgment).   In this case, the habeas court's judgment ordered the case returned to the criminal trial court for further proceedings, i.e., a new prosecution of the petitioner.   The petitioner is not seeking to terminate the stay and require the state to begin the re-prosecution while Respondent's appeal is still pending.

A stay barring enforcement of a judgment can peacefully co-exist with the setting of a bond that can be posted during the appeal.  In re Bromell G., 214 Conn. 454, 457, 462–63 (1990).   The petitioner merely seeks the opportunity to post bond and thereby gain his release from custody, with appropriate conditions, during the pendency of the appeal.

An appeal bond is appropriate in this case because the petitioner has continued to serve the sentence that arose from proceedings that both the habeas and Appellate Court concluded were invalid.   If, as seems likely in view of the Appellate Court's actual decision, the Supreme Court affirms the granting of relief, the petitioner will return to the trial court for further proceedings, if those proceedings end favorably for the petitioner (for example via a jury acquittal, or a decision by the state that it will not reprosecute) the days served under the invalid sentence cannot be reclaimed.

Practice Book § 38–4 sets forth the factors the Court may consider in setting bond and nonfinancial conditions (such as electronic monitoring) that may be ordered as a condition of release on bond.   That provision, although not directly applicable to appeal bonds, provides guidance for the court in determining whether to set an appeal bond and in what amount and with what conditions.

As stated at the hearing on November 1, 2011, the petitioner maintains close family ties, especially with his father, in Bridgeport.   The alleged victim in the criminal case, along with her mother, has relocated to a southern state.   The petitioner receives emotional support, encouragement and advice from his church.   He is a skilled worker, a welder, who has a reasonable likelihood of obtaining employment within a reasonable period of time after his release.   His clergyman has specifically offered to become involved in the process of the petitioner obtaining work.

The petitioner acknowledges that even if the alleged victim had not moved out of state, he is bound by court order to have absolutely no contact with her whatsoever.   The petitioner has volunteered to be subject to electronic monitoring as part of any appellate bond.

ORDER

The motion to set an appellate bond having been considered, it is hereby ORDERED:  Granted and the court sets bond in the amount of $150,000, cash or surety, and the petitioner shall be monitored electronically while on bond.

THE COURT

Angelo L. dos Santos, Sr., J.

FOOTNOTES

FN1. The appeal is listed on the Supreme Court's docket for the fifth term, January/February 2012.   See http:// www.jud.ct.gov/external/supapp/SupDocket.pdf, last visited 1/9/2012.   It was not assigned for oral argument during the fourth term, January 2012.   See http://www.jud.ct.gov/external/supapp/sup_assign.htm, last visited 1/9/2012..  FN1. The appeal is listed on the Supreme Court's docket for the fifth term, January/February 2012.   See http:// www.jud.ct.gov/external/supapp/SupDocket.pdf, last visited 1/9/2012.   It was not assigned for oral argument during the fourth term, January 2012.   See http://www.jud.ct.gov/external/supapp/sup_assign.htm, last visited 1/9/2012.

FN2. The Court's inherent authority to set an appeal bond in a habeas case is reinforced by the Connecticut Practice Book. See C.P.B. § 43–2 (authorizing appeal bond in criminal cases “pending final disposition of [the] case upon sentence or appeal”) in conjunction with C.P.B. § 43–30 (criminal and habeas corpus appeals treated alike);  § 62–9A. Hybrid Representation;  Removal or Substitution of Counsel in Criminal and Habeas Corpus Appeals (same);  § 63–3.   Filing of Appeal;  Number of Copies (same);  § 63–4 Additional Papers to Be Filed by Appellant and Appellee when Filing Appeal, subsections (6) & (7) (same);  § 63–6 Waiver of Fees, Costs and Security—Civil Cases (same) citing Winnick v. Reilly, 100 Conn. 291, 123 A. 440 (1924);  State v. Vaughan, 71 Conn. 457, 460–61 (1899) (where appellate review available, trial court has the power to admit to bail post-conviction);  cf.  Rose v. Nickeson, Warden, 29 Conn.Sup. 80, 82 (Superior Court (August 28, 1970) (Parskey, J.) (re bond during trial-level habeas proceedings:  “Since bail is the handmaiden of custody, the power to admit to bail is inherent in the court”), Cingue v. Boyd, 99 Conn. 70, 92 (1923).  “If the right to bail after the determination of the habeas corpus proceeding in the trial court did not exist, the right of appeal would be destroyed or seriously hampered, for the period of the pendency and determination of the appeal by this court might be considerable[.]”  Winnick v. Reilly, supra, 100 Conn. at 298..  FN2. The Court's inherent authority to set an appeal bond in a habeas case is reinforced by the Connecticut Practice Book. See C.P.B. § 43–2 (authorizing appeal bond in criminal cases “pending final disposition of [the] case upon sentence or appeal”) in conjunction with C.P.B. § 43–30 (criminal and habeas corpus appeals treated alike);  § 62–9A. Hybrid Representation;  Removal or Substitution of Counsel in Criminal and Habeas Corpus Appeals (same);  § 63–3.   Filing of Appeal;  Number of Copies (same);  § 63–4 Additional Papers to Be Filed by Appellant and Appellee when Filing Appeal, subsections (6) & (7) (same);  § 63–6 Waiver of Fees, Costs and Security—Civil Cases (same) citing Winnick v. Reilly, 100 Conn. 291, 123 A. 440 (1924);  State v. Vaughan, 71 Conn. 457, 460–61 (1899) (where appellate review available, trial court has the power to admit to bail post-conviction);  cf.  Rose v. Nickeson, Warden, 29 Conn.Sup. 80, 82 (Superior Court (August 28, 1970) (Parskey, J.) (re bond during trial-level habeas proceedings:  “Since bail is the handmaiden of custody, the power to admit to bail is inherent in the court”), Cingue v. Boyd, 99 Conn. 70, 92 (1923).  “If the right to bail after the determination of the habeas corpus proceeding in the trial court did not exist, the right of appeal would be destroyed or seriously hampered, for the period of the pendency and determination of the appeal by this court might be considerable[.]”  Winnick v. Reilly, supra, 100 Conn. at 298.

FN3. In 2004 Judge Rittenband considered the question of the habeas court's authority to set bond during the pendency of Respondent's appeal from a judgment granting relief in a habeas case.   Jermaine Woods v. Warden, 2004 Conn.Super. LEXIS 357 (Superior Court CV00–0598785, February 11, 2004) [36 Conn. L. Rptr. 529].   In that matter the parties erroneously informed the court that there were no cases on the question whether the habeas court had the authority to set bond in that situation.   Id. at 1. Believing the case to be one of first impression the court was guided by its understanding of public policy and declined to order an appeal bond.   As set forth above, the habeas court's authority to set bond has long been recognized.   In Woods, Respondent and the Court both relied upon C.G.S. § 54–63f, which provides for bond during the pendency of an appeal, but excludes murder.   The relevant portion of that statute reads “Sec. 54–63f.   Release after conviction and pending sentence or appeal.   A person who has been convicted of any offense, except a violation of section 53a–54a, ․ may be released pending final disposition of the case, unless the court finds custody to be necessary to provide reasonable assurance of such person's appearance in court ․” Woods at 5..  FN3. In 2004 Judge Rittenband considered the question of the habeas court's authority to set bond during the pendency of Respondent's appeal from a judgment granting relief in a habeas case.   Jermaine Woods v. Warden, 2004 Conn.Super. LEXIS 357 (Superior Court CV00–0598785, February 11, 2004) [36 Conn. L. Rptr. 529].   In that matter the parties erroneously informed the court that there were no cases on the question whether the habeas court had the authority to set bond in that situation.   Id. at 1. Believing the case to be one of first impression the court was guided by its understanding of public policy and declined to order an appeal bond.   As set forth above, the habeas court's authority to set bond has long been recognized.   In Woods, Respondent and the Court both relied upon C.G.S. § 54–63f, which provides for bond during the pendency of an appeal, but excludes murder.   The relevant portion of that statute reads “Sec. 54–63f.   Release after conviction and pending sentence or appeal.   A person who has been convicted of any offense, except a violation of section 53a–54a, ․ may be released pending final disposition of the case, unless the court finds custody to be necessary to provide reasonable assurance of such person's appearance in court ․” Woods at 5.

dos Santos, Angelo L., J.