202889 v. Warden, State Prison (2012)

MEMORANDUM OF DECISION

I. Procedural Background

The petitioner was the defendant in a criminal case in the judicial district of New Haven under docket number CR93–0381505.   After a jury trial, at which he was represented by Attorney William Dow, the petitioner was found guilty of conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53–48(a) and 53a–124(a)(1), larceny in the third degree in violation of General Statutes § 53a–124(a)(1), conspiracy to commit murder in violation of General Statutes §§ 53–48 and 53a–54a(a), murder in violation of General Statutes § 53a–54a(a), assault in the first degree in violation of General Statutes § 53a–59 and falsely reporting an incident in violation of General Statutes § 53a–180(a)(3)(A.)

The following facts, taken from the Appellate Court decision, could reasonably have been found by the jury:  “[I]n March 1993, the [petitioner], accompanied by four masked men, approached Alex Santana and asked him where to find his cousin, George Flores.   When Santana replied that he had not seen Flores, the [petitioner] punched Santana in the face, causing him to be thrown against a store window.   The owner of the store came outside and the [petitioner] and his companions departed.

“On May 5, 1993, at approximately 11 p.m., the [petitioner] agreed to pay Ronaldo Rivera $40 if he would steal a large, fast, four-door automobile and deliver it to the [petitioner].   Rivera found such a vehicle on Frank Street in New Haven and, with the help of a friend, stole a four-door Buick and brought the car to the [petitioner] and another man on Ward Street at approximately 2 a.m.

“Santana had been riding that night in the car of his friend, Butch Console, with three other persons, Marilyn Torres, Melissa Dawson and Dimiris Vega. When the car stopped on Button Street, the occupants got out.   As they were standing by the car, a man approached and offered to paint Console's initials on the driver's door.   Console agreed and then stood next to a red station wagon parked on the opposite side of the street.   Meanwhile, his friends stood on the street side of Console's car watching the man paint.   Console noticed a car approaching slowly on Button Street.   He saw what he first thought were firecrackers coming from the rear seat of the car.   When he realized it was gunfire, Console ran around the front of the station wagon to the sidewalk and knelt to avoid bullets.   The approaching car was the stolen Buick and contained the [petitioner] and three companions.   Gunfire erupted from the area of the rear seat of the Buick.   One bullet hit Santana in the stomach, resulting in his hospitalization.   Another bullet struck Torres in the back, causing her death.   The evidence indicated that at least five shots were fired from close range.

“A few minutes later, the [petitioner] and his companions crashed the Buick on Howard Avenue and abandoned it with the motor running, the rear door open, a bullet casing on the floor behind the driver's seat, and a sheet covering the rear seat wet with blood.   The rear window had been blown out.   A second shell was found on the roof of the car, and a third was found on Button Street at the shooting scene.   The [petitioner] went to the Hospital of St. Raphael (hospital) at 2:49 a.m. to seek treatment for a gunshot wound.   He spoke with a New Haven police officer at 3:05 a.m. He gave a statement to Sergeant Diane Langston declaring that he and his friend had been accosted and shot on the street in an attempted robbery by two masked men.   The [petitioner] stated that he and his friend then ran directly to the hospital.”  State v. Ham, 55 Conn.App. 281, 283–85, 739 A.2d 1268, cert. denied, 252 Conn. 916, 743 A.2d 1128 (1999.)

Following his conviction, the trial court sentenced the petitioner to a total effective sentence of fifty years imprisonment.   The petitioner unsuccessfully appealed his conviction.   See State v. Ham, supra, 55 Conn.App. 281.   Attorney William Palmieri represented him on appeal.

Prior to filing the present petition, the petitioner filed approximately three other petitions.   Only one of those petitions proceeded to trial.   In that petition, the petitioner alleged that his trial counsel rendered ineffective assistance by misadvising him regarding his parole eligibility in relation to a plea offer that he ultimately rejected.   The habeas court, Dos Santos, J., denied the petition.   Ham v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 05 4000598 (November 10, 2008, Dos Santos, J.), aff'd, Ham v. Commissioner of Correction, 301 Conn. 697, 23 A.3d 682 (2011.)   Attorney Frank Cannatelli represented the petitioner in that habeas matter.

The petitioner commenced the present action by filing a petition for a writ of habeas corpus on April 20, 2009.   Following the appointment of counsel, the petition was amended on November 11, 2011 and January 9, 2012.   In the operative petition, the second amended petition, the petitioner alleges that his constitutional right to the effective assistance of trial counsel was violated (count one), his constitutional right to the effective assistance of appellate counsel was violated (count two) and his constitutional right to the effective assistance of habeas counsel was violated (count three.)   The respondent filed a return on January 24, 2012, generally denying the allegations in the petition and raising the special defenses of res judicata, procedural default and abuse of the writ.   The matter was tried to the court on February 9, 2012.   Attorney Dow, the petitioner's former trial attorney, and James Stephenson, the ballistics expert who testified at the petitioner's criminal trial, testified at the habeas trial.   The parties entered into evidence transcripts of the petitioner's criminal trial and prior habeas trial, a copy of the petitioner's prior habeas petition, a copy of the habeas court's memorandum of decision, a copy of the Appellate Court's decision in the petitioner's direct appeal and Stephenson's report dated May 12, 1993.

On January 26, 2012, the respondent filed a motion to dismiss claims one and two on grounds of res judicata and abuse of the writ.   On February 3, 2012, the petitioner withdrew certain allegations from counts one and two.   At the close of the petitioner's evidence, the respondent moved to dismiss counts two and three pursuant to Practice Book § 15–8 for failure to make out a prima facie case.   This court granted the respondent's motion, as the petitioner had not presented any evidence that the conduct of petitioner's former appellate and habeas counsel fell below an objective standard of reasonableness.   Consequently, the only remaining count for the court to address is count one—the petitioner's claim of ineffective assistance of trial counsel.

II. Law and Discussion

A. Respondent's Motion to Dismiss (# 116.00)

As mentioned supra, the respondent moved to dismiss count one.  “Because subject matter jurisdiction implicates the authority of the court, the issue, once raised, must be resolved before proceeding to the merits of the case ․” (Citation omitted.)  State v. Fowler, 102 Conn.App. 154, 158, 926 A.2d 672, cert. denied, 284 Conn. 922, 933 A.2d 725 (2007.)

In his motion to dismiss, the respondent contends that count one presents the same legal ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition.   Additionally, he asserts that count one amounts to an abuse of the writ, as the petitioner could have brought the claim in the earlier petition.   In his objection to the motion to dismiss, the petitioner argues that count one presents a different legal ground than that raised in the earlier petition because it challenges trial counsel's trial representation not his pretrial representation, which he challenged in the prior petition.   He also argues that he has not abused the writ, as he has only litigated one prior petition, and that any failure to raise the present claim earlier is attributable to the ineffective assistance of prior habeas counsel.

“The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made ․ The doctrine ․ applies to criminal as well as civil proceedings and to state habeas corpus proceedings ․ However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner ․ Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights ․ the application of the doctrine of res judicata ․ [is limited] to claims that actually have been raised and litigated in an earlier proceeding.”  (Internal quotation marks omitted.)   Kearney v. Commissioner of Correction, 113 Conn.App. 223, 234, 965 A.2d 608 (2009.)  “A narrowing of the application of the doctrine of res judicata to habeas proceedings is encapsulated in Practice Book § 23–29, which states:  ‘The judicial authority, may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that ․ (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition ․’ “ Id., 234.

“In this context, a ground has been defined as sufficient legal basis for granting the relief sought ․ [T]he fact that both petitions [are] based on the legal ground that the petitioner was denied the effective assistance of counsel in his criminal trial alone is not fatal to the petitioner's petition.   For example, a petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief ․ But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition.”  (Internal quotation marks omitted.)   Harris v. Commissioner of Correction, 97 Conn.App. 382, 386–87, 904 A.2d 280, cert. denied, 280 Conn. 928, 909 A.2d 523 (2006.)

In his earlier petition, the petitioner alleged that his trial counsel rendered ineffective assistance by misadvising him about his parole eligibility in relation to a plea offer.   He claimed that he rejected the offer because of counsel's erroneous advice and that but for counsel's erroneous advice, he would have taken the plea offer and thereby, been sentenced to a lesser sentence.   In his prayer for relief in that case, applying to his claims in general (the petitioner raised other claims relating to prior habeas counsel, the habeas court and the trial court), the petitioner requested that the habeas court release him from custody, vacate his judgment of conviction, remand the case back to the trial court for a new trial and such other relief, as law and equity, may allow.

In his present petition, the petitioner alleges that his trial counsel rendered ineffective assistance during trial by (1) failing to preserve for appeal the issue of whether the trial court improperly instructed the jury on consciousness of guilt, (2) failing to file a motion in limine precluding the introduction of firearms and ballistics evidence at trial, (3) failing to file a motion for a Porter hearing with respect to the firearms and ballistics evidence at trial and (4) by failing to effectively cross-examine the state's testimony with respect to the firearms and ballistics evidence at trial.¹  In his prayer for relief, the petitioner requests that his convictions and sentences be vacated, the case be restored to the trial court docket for a new trial and such other relief as law and justice require.

Despite the petitioner's argument that his present claim of ineffective assistance of trial counsel constitutes a different legal ground because it challenges trial counsel's trial conduct rather than his pretrial conduct, it is still a claim of ineffective assistance of trial counsel merely premised on different factual allegations.   As such, it does not constitute a different legal ground.   The petitioner could have and should have raised these claims in the prior petition.  “[A]n ineffective assistance claim should be resolved, not in piecemeal fashion, but as a totality after an evidentiary hearing in the trial court ․” (Internal quotation marks omitted.)  State v. Abraham, 64 Conn.App. 384, 404, 780 A.2d 223, cert. denied, 258 Conn. 917, 782 A.2d 1246 (2001.)   Nonetheless, the prior petition arguably did request a different form of relief than his present petition, because if the petitioner had been successful in establishing that his trial counsel misadvised him during pretrial negotiations and that he would have taken the plea offer but for counsel's erroneous advice, he could have sought to have the pretrial offer re-extended.²  “Should doubts arise in particular cases as to whether two grounds are different or the same, they should be resolved in favor of the applicant.”  (Citations omitted.)  Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963.)   Accordingly, the petitioner's claim is not successive or an abuse of the writ because the petitioner is seeking different relief in the present petition.   See, e.g., Harris v. Commissioner of Correction, supra, 97 Conn.App. 386 (“a petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief” [internal quotation marks omitted].)   Therefore, the respondent's motion to dismiss (# 116.00) is DENIED.

B. Count One—Ineffective Assistance of Trial Counsel

Turning to the merits of the petitioner's present claim of ineffective assistance of trial counsel, “[t]o succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984.)  Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong.   To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ․ by the [s]ixth [a]mendment ․ To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different ․ The claim will succeed only if both prongs are satisfied ․ It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.”   (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712–13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008.)   All of the petitioner's claims fail, as the petitioner has proven neither deficient performance on the part of Attorney Dow nor any resulting prejudice.

First, the petitioner alleges that Attorney Dow rendered ineffective assistance by failing to preserve for appeal the issue of whether the trial court improperly instructed the jury on consciousness of guilt.   The trial court instructed the jury that it could infer that any false statements made by the petitioner to Sergeant Langston regarding his whereabouts and how he received the gunshot wound to his arm during the early morning hours of May 6, 1993 “were borne of a guilty mind and that they tend to show a guilty connection by the [petitioner] with the crimes.” ³  Although Attorney Dow did not take any exception to the charge, the petitioner challenged it on appeal.   The Appellate Court, although declining to fully review the challenged instruction, suggested that it was appropriately given in the petitioner's case.   It stated:  “[T]he instruction given here merely identified a permissive inference that the jury might draw from the [petitioner's] false statement ․” (Internal quotation marks omitted.)  State v. Ham, supra, 55 Conn.App. 293.   Moreover, Attorney Dow testified that he did not object to the instruction because there was evidence in the record to support it.   This Court agrees.   There was evidence adduced at the petitioner's criminal trial that within one-half hour of the shooting the petitioner went to the hospital for treatment for a gunshot wound to his arm.   While there, he informed Sergeant Langston that he had been injured during an attempted robbery by two masked men.   His explanation for his gunshot wound was never corroborated by other evidence.  “Indeed, an investigation of the alleged location of the reported attempted robbery uncovered no shell casings, blood drops or other physical evidence to support the [petitioner's] account of the attempted robbery.”   Id., 286.   Based upon this evidence, the trial court properly gave the jury a consciousness of guilt instruction.   As noted by the Appellate Court, “[e]vidence that an accused has made false statements tending to exculpate him from involvement in the crimes charged has commonly been deemed to support a jury charge on consciousness of guilt.”  Id., 291.

In short, the petitioner has failed to demonstrate that Attorney Dow's representation fell below an objective standard of reasonableness.  Small v. Commissioner of Correction, supra, 286 Conn. 712–13.   Additionally, as there was substantial evidence of the petitioner's guilt beyond his false statements to Sergeant Langston, such as his fingerprints and blood that were found in the car involved in the shooting, the petitioner has failed to prove that the outcome of his trial would have been different had Attorney Dow objected to the trial court's jury instruction on consciousness of guilt.  Id.

The petitioner next claims that Attorney Dow rendered ineffective assistance relating to the firearms and ballistics evidence presented at trial.   Specifically, he contends that Attorney Dow should have filed a motion in limine to preclude the evidence and a motion for a Porter hearing to determine its admissibility.⁴  The science of firearm and tool mark identification is well established, and such evidence has routinely been held admissible.   See, e.g., State v. Legnani, 109 Conn.App. 399, 415–21, 951 A.2d 674, cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008) (upholding trial court's denial of defendant's motion for a Porter hearing to determine whether the testimony of a firearm and tool mark examiner was relevant and supported by a valid methodology.)   The petitioner has failed to present any evidence before this Court that the firearms and ballistics evidence presented in the petitioner's criminal trial would have been excluded by a motion in limine or by a Porter hearing.  Id. In fact, it is unlikely that a Porter hearing would not have even been held had it been requested.  Id.

The petitioner also claims that Attorney Dow did not effectively cross-examine Stephenson, the ballistics expert who testified at the petitioner's criminal trial.   Like his other claims, there is no evidence before this Court demonstrating that Attorney Dow ineffectively cross-examined Stephenson.   Attorney Dow testified at the habeas trial that his tactic with expert witnesses, like the ballistics expert in the petitioner's case, often is to get them on and off the stand as soon as possible after getting some information from them that is helpful to the defense.   During the petitioner's criminal trial, Attorney Dow was able to elicit testimony from Stephenson that he could not determine who fired what bullets or when they were fired in relation to the evidence he examined.   Attorney Dow was also able to elicit testimony from Stephenson that he could not say “for sure” or “with certainty” that certain pieces of evidence were fired from a firearm of a particular caliber.⁵  “[C]ross-examination is a sharp two-edged sword and more criminal cases are won by not cross-examining adverse witnesses, or by a very selective and limited cross-examination of such witnesses, than are ever won by demolishing a witness on cross-examination ․ The decision whether to cross-examine a witness is peculiarly one for defense counsel and his judgment should be entitled to great respect by the court.”  (Internal quotation marks omitted.)  State v. Clark, 170 Conn. 273, 287–88, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976.)   That is, “[a]n attorney's line of questioning on examination of a witness clearly is tactical in nature.  [As such, this] court will not, in hindsight, second-guess counsel's trial strategy.”  (Internal quotation marks omitted.)  Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010.)   Attorney Dow's cross-examination of Stephenson was tactical, and the petitioner has not overcome “the strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment ․” (Citation omitted.)  Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002.)   The petitioner has not identified any ways in which Attorney Dow could have more effectively cross-examined Stephenson.   Moreover, Stephenson was examined by petitioner's counsel in the present proceeding, and his testimony was strong and credible.

Additionally, the petitioner has also failed to demonstrate that Attorney Dow's handling of the firearms and ballistics evidence prejudiced his case in any way.   Even if Attorney Dow had handled that evidence differently or had somehow succeeded in excluding it, there is no reasonable probability that the outcome of the petitioner's trial would have been different.  Small v. Commissioner of Correction, supra, 286 Conn. 712–13.   Apart from the ballistics evidence, the petitioner's blood and fingerprints were found inside of the vehicle, there was evidence from another individual that the petitioner had asked him to steal the specific car associated with the crime just before the shooting, the petitioner had a physical dispute with one of the victims not long before the shooting, and the petitioner went to the hospital for treatment of a gunshot wound to his arm within one-half hour of the shooting, which he claimed occurred during an attempted robbery that could not be corroborated with any evidence.   Accordingly, the petitioner's claims fail.  Id.

CONCLUSION

Based on the foregoing, the petition for a writ of habeas corpus is DENIED.   If the petitioner wishes to appeal the court's ruling, counsel shall prepare and submit a judgment file to the clerk within thirty (30) days.

BY THE COURT,

Hon. John M. Newson

FOOTNOTES

FN1. The petitioner had also alleged that trial counsel rendered ineffective assistance by failing to file a motion to change the venue of the petitioner's criminal trial and by failing to investigate evidence of bias and motive on the part of Sergeant Diane Langston, one of the state's witnesses, but these claims were withdrawn prior to trial..  FN1. The petitioner had also alleged that trial counsel rendered ineffective assistance by failing to file a motion to change the venue of the petitioner's criminal trial and by failing to investigate evidence of bias and motive on the part of Sergeant Diane Langston, one of the state's witnesses, but these claims were withdrawn prior to trial.

FN2. In his objection to the respondent's motion to dismiss, the petitioner contends that the relief sought in the earlier petition included seeking the benefit of the plea bargain, i.e., an opportunity to accept the original plea offer.   The United States Supreme Court has recently held that where ineffective assistance of counsel has caused the rejection of a plea leading to a trial and a more severe sentence, “[t]he correct remedy in these circumstances ․ is to order the State to reoffer the plea agreement.   Presuming [petitioner] accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence [petitioner] pursuant to the plea agreement, to vacate only some of the convictions and resentence [petitioner] accordingly, or to leave the convictions and sentence from trial undisturbed.”  Lafler v. Cooper, 566 U.S_, _ S.Ct._, _ L Ed.2d (2012.).  FN2. In his objection to the respondent's motion to dismiss, the petitioner contends that the relief sought in the earlier petition included seeking the benefit of the plea bargain, i.e., an opportunity to accept the original plea offer.   The United States Supreme Court has recently held that where ineffective assistance of counsel has caused the rejection of a plea leading to a trial and a more severe sentence, “[t]he correct remedy in these circumstances ․ is to order the State to reoffer the plea agreement.   Presuming [petitioner] accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence [petitioner] pursuant to the plea agreement, to vacate only some of the convictions and resentence [petitioner] accordingly, or to leave the convictions and sentence from trial undisturbed.”  Lafler v. Cooper, 566 U.S_, _ S.Ct._, _ L Ed.2d (2012.)

FN3. Petitioner's Exhibit (Exh.) 8, p. 76..  FN3. Petitioner's Exhibit (Exh.) 8, p. 76.

FN4. A Porter hearing is held to determine the threshold admissibility of scientific evidence pursuant to the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589–92, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993.)   See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998.).  FN4. A Porter hearing is held to determine the threshold admissibility of scientific evidence pursuant to the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589–92, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993.)   See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998.)

FN5. Petitioner's Exh. 6, pp. 26, 36–39..  FN5. Petitioner's Exh. 6, pp. 26, 36–39.

Newson, John M., J.