State of Connecticut v. Richard Koslik (2012)

MEMORANDUM OF DECISION REGARDING DEFENDANT'S PETITION FOR A NEW TRIAL

The Defendant was convicted after a jury trial in January 2008 of three counts of violating the Connecticut Home Improvement Act, in contravention of General Statutes § 20–427(b).  On April 4, 2008, the Defendant was sentenced for those offenses to a total effective sentence of nine months imprisonment and fines of $2,000.   The Defendant appealed his convictions and sentence, and that appeal is currently pending before the Connecticut Appellate Court.

On October 19, 2011 the Defendant, who is now representing himself at the trial court level, filed a pleading with this court entitled “Petition For A New Trial.”   The Defendant indicated that he was proceeding pursuant to the provisions of General Statutes § 52–270 and Practice Book § 42–53.¹  In this pleading, the Defendant lists 12 reasons as the basis for his claim that a new trial should be granted.   Those grounds are incorporated by reference here, in their entirety.

Hearings on this pleading, and other post-trial motions filed by the Defendant during October 2011, were held during December 2011.   The parties were allowed until February 2, 2012 to file memoranda of fact and law.   The court has carefully considered the evidence and the legal arguments presented by the parties at the hearings.

JURISDICTIONAL ISSUES

Before it examines any of the Defendant's substantive claims, the court must first determine whether or not it has jurisdiction to entertain this pleading.

As noted, the pleading is captioned as a “Petition For A New Trial,” and refers to both General Statutes § 52–270 ² and Practice Book § 42–53.³  Pursuant to Practice Book § 42–54, a motion for a new trial must be made within five days after a verdict or finding of guilty, or within any further time allowed by the judicial authority within that five-day period, unless the court otherwise permits in the interests of justice.  Practice Book § 42–55 deals with requests for new trial based upon newly discovered evidence.   It states:  “A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with General Statutes § 52–270.   The judicial authority may grant the petition even though an appeal is pending.”

To the extent that the Defendant claims that his pleading is a “Petition For A New Trial” brought pursuant to General Statutes § 52–570, the court concludes that the Defendant has made procedural error, and that the court lacks jurisdiction to entertain it.   Connecticut case law is clear that a petition for a new trial must be instituted through a separate writ and complaint served upon the adverse party in a distinct civil proceeding.  “The differences between a motion for a new trial and a petition for a new trial [pursuant to § 52–270] are matters of substance, not merely of form,” State v. Bruno, 132 Conn.App. 172, 173 n.3, 30 A.3d 34, 37 (2011), cert. denied, 303 Conn. 919 (2012).   When a “ ․ defendant neglected to serve a writ of summons and complaint in accordance with § 52–270, but merely filed the motion in the criminal case ․” the court lacks the jurisdiction under § 52–270 to entertain a petition for a new trial.  Id.

Such is the case here.   Although the Defendant styled his pleading a “Petition For New Trial” and refers to § 52–270, he did not serve a writ and complaint to initiate a separate civil proceeding, and he filed his claim for a new trial in the form of a post-verdict pleading in the criminal case.

The Defendant appears to alternatively rely on the provisions of Practice Book § 42–53, et sequitur.   As previously noted, as a general rule, a motion for a new trial under the practice book section must be brought within five days of entry of verdict or judgment, or within such other time period that the court sets within that five-day period.   However, § 42–54 of the practice book does enable the judicial authority to allow the later filing of a motion for a new trial, if the court determines that it would be in the interests of justice to grant such permission.

The Defendant filed his request for a new trial on October 19, 2011, approximately three and one-half years after the jury found him guilty, and while his appeal is pending.   The court has carefully considered each of the 12 grounds that the Defendant cites as the basis for his claim that a new trial should be granted.   The court concludes that a number of these grounds are not proper grounds for a new trial and/or were not timely raised.   However, in the interests of justice, the court will consider here the claims of the Defendant that he has discovered new evidence, and that the State improperly withheld exculpatory evidence from him during the trial.⁴

FACTUAL AND LEGAL FINDINGS

On January 29, 2008, the jury convicted the Defendant of two counts of illegally offering to make a home improvement and one count of illegally making a home improvement, in violation of General Statutes § 20–427(b)(5).   The substitute information charging the Defendant alleged that he illegally offered to make home improvements to Nanci Harvey of Enfield, Connecticut on March 28, 2006 and May 20, 2006.   The substitute information also alleged that the Defendant illegally made home improvements for Ms. Harvey at her home in Enfield between July 24, 2006 and August 1, 2006.

During the trial, the Defendant offered evidence in support of his contention that he never acted as a home improvement contractor or home improvement salesman in connection with the home improvements made at Ms. Harvey's residence.   The Defendant testified and offered other evidence in an attempt to prove that although he offered to sell building materials to the complainant, he never offered to make home improvements.   He also attempted to prove that the offer to make home improvements was a contract between Ms. Harvey and Deborah Haugabook, a registered home improvement contractor who did business as J.T. Home Improvement, and that any home improvements at the complainant's residence were therefore made by Ms. Haugabook.   The Defendant also contended at trial that because Ms. Haugabook was Ms. Harvey's home improvement contractor, any work that he did installing materials at the complainant's home was not criminal conduct under the Home Improvement Act.⁵ (A detailed recitation of the Defendant's claims that he did not violate the Home Improvement Act, and that Deborah Haugabook was the complainant's home improvement contractor, appears on pages 42–60 of his February 2012 memorandum.)   The jury apparently did not credit the Defendant's evidence, and convicted him on the three counts referred to above.

The Defendant's claims of newly discovered and improperly withheld evidence relate to decisions made by the Department of Consumer Protection in September 2007 and January 2008 in a separate administrative proceeding related to Ms. Harvey's home improvement transaction (Defendant's Exhibits 1 and 2), and to a sworn affidavit for reimbursement from the Home Improvement Guaranty Fund that Ms. Harvey signed on January 14, 2008 and submitted to the Department of Consumer Protection (DCP) on or about January 18, 2008 (Defendant's Exhibit 3).   In the proposed final decision and the final decision, a DCP hearing officer and the agency's commissioner ruled that Nanci Harvey had entered into home improvement contracts with Deborah Haugabook, d.b.a. J.T. Home Improvement, for the work at her residence, and was entitled to restitution from the Home Improvement Guaranty Fund. (Defendant's Exhibit 1, pages 2–5.)   The hearing officer's proposed final decision also contained findings that Ms. Haugabook “․ allowed unregistered individuals to enter into contracts on her behalf and use her registration” and that Ms. Haugabook “․ and/or the aforementioned unregistered individuals failed to complete the contracted work in a timely and workman like manner ․” (Id., page 2.) In the sworn affidavit that Ms. Harvey submitted in connection with her application for reimbursement from the Guaranty Fund, Deborah Haugabook is listed as the contractor.  (Defendant's Exhibit 3.)

The defendant alleges that he was not provided with copies of DCP's administrative decisions, nor with a copy of Ms. Harvey's Guaranty Fund application and affidavit, before or during his trial in January 2008.   He contends that this is newly discovered evidence that would have changed the outcome of the trial.   The defendant maintains that the administrative decisions and Ms. Harvey's affidavit would have contradicted the state's allegations in the criminal case that he illegally offered to make, and made, the home improvements at the complainant's residence.

“The standard that governs the granting of a petition for a new trial based on newly discovered evidence is well established.   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 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 ․ These rules are motivated by the policy that [o]nce a judgment [is] rendered it is to be considered final and it should be left undisturbed by post-trial motions except for a good and compelling reason.”   (Citations omitted, internal quotation marks omitted.)  Worth v. Korta, 132 Conn.App. 154, 160–61, 31 A.3d 804, 2011.

The following additional facts and procedural history are relevant to this issue.   During the trial, the court sustained the State's objection to the defendant's evidentiary offer that the DCP had administratively determined that Deborah Haugabook was Nanci Harvey's home improvement contractor.   However, the jury did hear evidence about the administrative hearing and Ms. Harvey's Guaranty Fund claim.   On January 23, 2008, Ms. Harvey testified at trial that she had made the claim to DCP, that there had been a hearing, and that the respondent in that proceeding was Deborah Haugabook.   Ms. Harvey also testified on that date that she had been informed that because the documents she received from the Defendant bore a registration number that was issued to Deborah Haugabook, she was eligible to receive reimbursement from the Home Improvement Guaranty Fund in conjunction with the administrative proceeding that named Ms. Haugabook as the respondent.   On January 23, 2008, James Turner, an investigator with the DCP, testified at trial about the administrative hearing that his agency conducted with respect to Ms. Harvey's claim.   He stated that he testified at the administrative hearing about the contracts between Nanci Harvey and Deborah Haugabook.   He also testified that the respondent at the hearing was Deborah Haugabook, J.T. Home Improvement.   On January 24, 2008, the Defendant testified before the jury.   He indicated during his testimony that he was aware that Nanci Harvey had made a claim to the DCP, and that the respondent in that proceeding was Deborah Haugabook.   Additionally, during summation to the jury, the Defendant's attorney made a reference to a determination at DCP that Deborah Haugabook was Ms. Harvey's home improvement contractor.  (Trial Transcript, January 29, 2008, pages 150–60.) ⁶

Based on the foregoing, this court does not conclude that either the written administrative decisions of the DCP, or Nanci Harvey's January 14, 2008 affidavit, constitute newly discovered evidence.   The court finds that both the Defendant, and his counsel, knew at the time of trial about the complainant's Guarantee Fund claim, the DCP administrative proceeding, and the fact that Ms. Harvey had named Deborah Haugabook as her home improvement contractor in that matter.   The jury received evidence about those subjects during the criminal trial.   The court also finds that the evidence claimed to be newly discovered is merely cumulative of the proof presented then, and would not have altered the outcome of the trial.

The Defendant also claims that the state concealed or withheld the forgoing evidence from him at trial, in violation of his due process rights as delineated in the U.S. Supreme Court in the case of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).   The Supreme Court held in Brady that the suppression by the government of evidence favorable to a defendant violates the due process clause where the evidence is material either to guilt or punishment, regardless of the good faith, or bad faith, of the prosecution.  “To establish a Brady violation, the [petitioner] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [petitioner], and (3) it was material [either to guilt or punishment.]”  (Internal quotation marks omitted.)  Walker v. Commissioner of Correction, 103 Conn.App. 485, 492, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007).

“In order to obtain relief under Brady, a defendant bears the heavy burden of satisfying all three prongs of the aforementioned test ․ Even if a defendant is able to demonstrate that the government suppressed favorable evidence, he must still demonstrate that the evidence is material.   The test for materiality is well established.   Undisclosed exculpatory evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability, that had the evidence been disclosed to the defense, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  (Citations omitted;  internal quotation marks omitted.)  State v. Garlington, 122 Conn.App. 345, 358, 998 A.2d 1197, cert. denied, 298 Conn. 910, 4 A.3d 835 (2010).

“In analyzing a Brady claim, the court must avoid concentrating on the suppressed evidence in isolation.   Rather, we must place it in the context of the entire record.   Evidence that may first appear to be quite compelling when considered alone can lose its potency when weighed and measured with all the other evidence, both inculpatory and exculpatory.   Implicit in the standard of materiality is the notion that the significance of any particular bit of evidence can only be determined by comparison to the rest.”  (Citation omitted, internal quotation marks omitted.)  William B. v. Commissioner of Correction, supra, 128 Conn.App. 486.   See also:  Martin v. Warden, Superior Court, Judicial District of Tolland, Docket No. CV06 4001122 (Nov. 16, 2011, T. Santos, J.).

“[E]vidence is not considered to have been suppressed within the meaning of the Brady doctrine if the defendant either knew, or should have known of the essential facts permitting him to take advantage of that evidence.”  (Citations omitted, internal quotation marks omitted.)  State v. Skakel, 276 Conn. 633, 701, 888 A.2d 985 (2006).

It does not appear to be contested that the State did not provide the Defendant before or during the trial with copies of the DCP administrative hearing decisions, or the January 14, 2008 sworn Guaranty Fund affidavit in which Nanci Harvey listed Deborah Haugabook as the home improvement contractor for the work at her home.   The court incorporates here by reference all of the findings that it has previously made in this memorandum with respect to the Defendant's claim of newly discovered evidence.   The court finds that the Defendant and his counsel either knew, or should have known, at the time of trial about the evidence that he now claims was withheld from him by the State.   In accordance with the case law recited above, the court finds that said evidence was not suppressed by the prosecution, and that his request for a new trial based on alleged Brady v. Maryland violations should be denied.

ORDER

The Defendant's October 19, 2011 “Petition For A New Trial” is hereby DENIED in its entirety.   Dated this 2nd day of March 2012.

BY THE COURT:

Dyer, J.

FOOTNOTES

FN1. In his pleading, the Defendant wrote that he was proceeding pursuant to Practice Book § 43–53.   No such section exists, and this was presumably a typographical error.   During oral argument, the Defendant clarified that he actually wished to proceed under Practice Book § 42–53..  FN1. In his pleading, the Defendant wrote that he was proceeding pursuant to Practice Book § 43–53.   No such section exists, and this was presumably a typographical error.   During oral argument, the Defendant clarified that he actually wished to proceed under Practice Book § 42–53.

FN2. The statute reads:  “Causes for which new trials may be granted. (a) The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases.   The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel may not have adequately protected their rights during the original trial of an action.”.  FN2. The statute reads:  “Causes for which new trials may be granted. (a) The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases.   The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel may not have adequately protected their rights during the original trial of an action.”

FN3. The practice book section reads, in pertinent part:  “Motion for New Trial;  In General (a) Upon motion of the defendant, the judicial authority may grant a new trial if it is required in the interests of justice.   Unless the defendant's noncompliance with these rules or with the requirements of law bars his or her asserting the error, the judicial authority shall grant the motion:(1) For an error by reason of which the defendant is constitutionally entitled to a new trial;  or(2) For any other error which the defendant can establish was materially injurious to him or her ․”.  FN3. The practice book section reads, in pertinent part:  “Motion for New Trial;  In General (a) Upon motion of the defendant, the judicial authority may grant a new trial if it is required in the interests of justice.   Unless the defendant's noncompliance with these rules or with the requirements of law bars his or her asserting the error, the judicial authority shall grant the motion:(1) For an error by reason of which the defendant is constitutionally entitled to a new trial;  or(2) For any other error which the defendant can establish was materially injurious to him or her ․”

FN4. In taking this approach, the court is aware of the case law and rule of practice that state that requests for a new trial based on newly discovered evidence should be raised in a petition for a new trial, pursuant to the provisions of General Statutes § 52–270.   However, because the alleged newly discovered evidence, and the evidence purportedly withheld from the defendant are essentially the same, the court believes that it is prudent and in the interests of justice to address both issues in this decision..  FN4. In taking this approach, the court is aware of the case law and rule of practice that state that requests for a new trial based on newly discovered evidence should be raised in a petition for a new trial, pursuant to the provisions of General Statutes § 52–270.   However, because the alleged newly discovered evidence, and the evidence purportedly withheld from the defendant are essentially the same, the court believes that it is prudent and in the interests of justice to address both issues in this decision.

FN5. At the request of the Defendant, the undersigned issued the following instruction to the jury with respect to the count of making home improvements:  “If you find that the defendant acted as a subcontractor, or as a person working under a contractor, in connection with the acts alleged in this count, you must find the defendant not guilty of this count.”   Jury Instructions, State of Connecticut v. Richard Koslik, CR07–142531, page 26..  FN5. At the request of the Defendant, the undersigned issued the following instruction to the jury with respect to the count of making home improvements:  “If you find that the defendant acted as a subcontractor, or as a person working under a contractor, in connection with the acts alleged in this count, you must find the defendant not guilty of this count.”   Jury Instructions, State of Connecticut v. Richard Koslik, CR07–142531, page 26.

FN6. In response to the State's objection to that comment, the court issued the following instruction to the jury:During final argument, [defense counsel] said that it had been determined at a Department of Consumer Protection Hearing that the contracts in evidence here in this trial are contracts between Deborah Haugabook, d/b/a, doing business as J.T. Home Improvement and Nanci Harvey.   There is no evidence before you that the Department of Consumer Protection made that determination.”There is, however, evidence before you that James Turner testified at the Department of Consumer Protection hearing that those contracts are contracts between Deborah Haugabook d/b/a J.T. Home Improvement and Nanci Harvey.(Trial Transcript, January 29, 2008, page 159, lines 10–22.).  FN6. In response to the State's objection to that comment, the court issued the following instruction to the jury:During final argument, [defense counsel] said that it had been determined at a Department of Consumer Protection Hearing that the contracts in evidence here in this trial are contracts between Deborah Haugabook, d/b/a, doing business as J.T. Home Improvement and Nanci Harvey.   There is no evidence before you that the Department of Consumer Protection made that determination.”There is, however, evidence before you that James Turner testified at the Department of Consumer Protection hearing that those contracts are contracts between Deborah Haugabook d/b/a J.T. Home Improvement and Nanci Harvey.(Trial Transcript, January 29, 2008, page 159, lines 10–22.)

Dyer, Richard W., J.