Michael Kendall v. Warden, State Prison (2014)

MEMORANDUM OF DECISION

The petitioner, Michael Kendall, seeks habeas corpus relief from his sentence of life imprisonment without possibility of parole imposed upon him for the crimes of capital felony murder and arson.   His convictions were affirmed on direct appeal, State v. Kendall, 123 Conn.App. 625 (2010);  cert. denied, 299 Conn. 902 (2010).   The bases for this habeas case is that the petitioner's defense counsel, Attorneys R. Bruce Lorenzen and Patrick J. Culligan, provided ineffective assistance during his criminal proceedings and a freestanding due process claim stemming from the admission of hearsay evidence at his trial.

I.

Preliminarily, the court recounts that on December 10, 2013, the habeas court opened for the purpose of taking evidence.   The petitioner's habeas counsel, Attorney Peter Tsimbidaros, indicated that he was prepared to proceed but that the petitioner wished to address the court.   The petitioner requested new habeas counsel be appointed because he was dissatisfied with Tsimbidaros.   After hearing from the petitioner and his lawyer, the court denied that request.   Attorney Tsimbidaros assured the court that he had thoroughly investigated his client's claims and potential witnesses and evidence and was ready to try the case to the fullest extent that the available evidence allowed.

The petitioner then asked to withdraw the case without prejudice.   The court explained that the trial had already been continued from January 2013, a period of eleven months, at the request of his habeas counsel.   The attorneys for both sides were ready to proceed with the habeas trial, and the court refused to countenance any further postponements based on the petitioner's disillusionment in his chances for success.

The petitioner objected to withdrawing the case “with prejudice,” i.e. the petitioner would be barred from refiling the same claims in a future habeas case.   Although unstated, the court assumed that the petitioner was relying on General Statutes § 52–80 which affords a plaintiff in a civil case the unfettered right to withdraw the matter “before the commencement of a hearing on the merits thereof.”

However, in the present case, the court had commenced the habeas hearing on the merits by taking the bench to hear evidence.   Consequently, the petitioner might only withdraw the habeas case “by leave of court for cause shown.”

The precise moment that a hearing “commences” for purposes of § 52–80 varies depending on the nature of the civil litigation in question.   For example, in family cases, our Appellate Court opined in footnote three of the decision in Grimm v. Grimm, 74 Conn.App. 406, 410 (2002), “[c]onsistent with the purpose of § 52–80 to prevent a party from unilaterally withdrawing an action once it has engaged the court, we believe that a better understanding of § 52–80 in the marital dissolution context is that its provisions apply any time after the court has conducted a hearing on any contested issue, including a pendente lite hearing.”

Similarly, in corporate dissolution cases, our Supreme Court held that a plaintiff has no absolute right to withdraw an action after the court had appointed an appraiser to value the company's stock, Barra v. Ridgefield Card and Gift Gallery, 194 Conn. 400, 401–02 (1984);  Spears v. Kerars Realty Co., 171 Conn. 699, 701–02 (1976).

Even in criminal matters, the critical moments for analyzing the commencement of different types of proceedings may differ.   Before double jeopardy attaches, a jury must be empaneled and sworn, State v. DesLaurier, 32 Conn.App. 553, 557 (1993);  Serfass v. U.S., 420 U.S. 377, 388 (1975).   However, for speedy trial analysis, a jury trial commences when jury selection begins, State v. Mish, 110 Conn.App. 245, 255 (2008).

In the present case, the court holds that the petitioner's habeas hearing commenced, for purposes of § 52–80, when the court took the bench to hear the evidence on the date and time assigned.   Counsel for both sides were ready to proceed.   The trial date had been postponed for eleven months in order to accommodate the petitioner's attorney.  Practice Book § 14–20 directs that “[p]arties and counsel shall be present and ready to proceed to trial on the day and time specified by the judicial authority.”   Also, Practice Book § 14–18 indicates that “[w]hen a case is reached on a day ․ certain, it shall be tried, defaulted, dismissed pursuant to § 17–19 or nonsuited, unless for good cause shown the judicial authority may assign it for trial on a future date.”

In reference to habeas matters in particular, Practice Book § 23–34 empowers the habeas judge “to establish such additional procedures as it determines will aid in the fair and summary disposition of habeas corpus petitions, including, but not limited to, scheduling orders,” (emphasis added).   The court concludes that these rules of practice invest it with the discretion to deny withdrawal of a habeas case without prejudice where that request for withdrawal was made at the time the court was about to receive evidence.   If the habeas court possesses the power to refuse withdrawal and proceed with the trial, the court must also have the authority to accept a withdrawal only under the condition “with prejudice.”   See Melendez v. Commissioner, 141 Conn.App. 836, 812–13 (2013), re applicability of § 52–80;  and Fine v. Commissioner, 147 Conn.App. 136, 145 (2013), regarding the viability of a withdrawal of a habeas case with prejudice.

Unlike ordinary civil cases, habeas corpus actions have no statute of limitations.   The existence of statutes of limitation are self-policing in the sense that withdrawal of a case after the limitations period has expired may thwart refiling whether the withdrawal was with prejudice or not.   The absence of definitive statutory time limits in habeas cases permits an inmate to postpone adjudication repeatedly and indefinitely finitely if that delay suits some purpose.   In order to effectuate a prompt, fair, and summary resolution of habeas matters, the court must possess the authority to suppress abuse by allowing a withdrawal only with prejudice.

II

The petitioner specifically alleges that his trial counsel failed to object adequately to entry of a 911 recording;  failed to investigate and present a third-party culpability defense;  failed to call certain witnesses at the criminal trial;  failed to cross examine certain witnesses sufficiently;  failed to object to purported prosecutorial misconduct during final argument;  failed to allow the petitioner to review the evidence in his case;  failed to pursue the defense of mental impairment;  failed to object properly to hearsay proffered under the spontaneous utterance exception;  and failed adequately to advise the petitioner not to testify at his criminal trial.

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.

If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence.  Pelletier v. Warden, 32 Conn.App. 38, 46 (1993).   In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.  Levine v. Manson, 195 Conn. 636, 640 (1985).   Reasonable probability means a probability sufficient to undermine confidence in the verdict.  Daeira v. Commissioner, 107 Conn.App. 539, 542–43 (2008), cert. denied, 289 Conn. 911 (2008);  that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt.  Id.

After answering a few preliminary questions, the petitioner refused to respond to any substantive matters when called to testify at the habeas hearing by his habeas counsel.   The only other testimony in the case came from Attorney Culligan who acknowledged having possessed and reviewed copies of statements from Adam Alston to East Hartford police officers on December 13, 2003, as well as a statement from the petitioner's mother, Jessie Kendall.

The court has carefully reviewed this evidence and the transcripts from the criminal case.   The court finds that the petitioner has failed to satisfy his burden of proving either prong of the Strickland standard by a preponderance of the evidence.   No expert witness testified in this case, and the representation afforded the petitioner by Attorneys Lorenzen and Culligan remains utterly unimpugned by any evidence, expert or otherwise.   No medical or lay evidence as to the petitioner's mental condition was offered.   No evidence was adduced as to the availability of witnesses nor to the expected content of their testimony.   No credible evidence as to third-party culpability was presented.

As noted above, the petitioner's conviction was upheld on direct appeal.   The court has also reviewed the decision of the Appellate Court.   That study discloses that the petitioner's allegations regarding the failure to contest the admissibility of hearsay statements and prosecutorial argument are devoid of legal merit because the Appellate Court addressed these claims and ruled that no improprieties occurred which deprived the petitioner of a fair trial.   Thus, the performance component of Strickland remains unproven.

Of equal significance, the court also finds that the petitioner has failed to prove that he sustained prejudice as a result of the supposed deficiencies by his trial lawyers.   The state's case against the petitioner was overwhelming.   This court's examination of the trial evidence demonstrates that the Appellate Court accurately described the salient facts which the jury could have reasonably and logically deduced.

“In December 2003, the defendant lived at 42 Great Hill Road in East Hartford with his wife, Ramona Kendall and their two daughters, Kayla Kendall, who was sixteen years old, and Alexis Kendall, who was twelve years old.   Ramona Kendall's father, Adam Alston, also was staying at the residence.   The Kendalls' home was part of a row of six connected apartments.   Katrea Anglin and Kiana Alston, daughters from Ramona Kendall's prior marriage, lived in a nearby apartment at 46 Great Hill Road.

The defendant and Ramona Kendall had a contentious relationship during their nineteen-year marriage.   During that time the defendant physically and emotionally abused her.   He told friends that if Ramona Kendall ever left him, he would “take her out” and that “sometimes you feel like you want to kill your whole family.”   In 2003, Ramona Kendall pursued divorce proceedings against the defendant.   As part of those proceedings, the court granted her exclusive use of the premises at 42 Great Hill Road, the defendant was ordered to leave the premises by December 13, 2003, and the children were to remain in the house.   The defendant was upset with the court order and wanted to take his daughters with him.

On December 13, 2003, between 4 and 5 a.m., Anglin was awakened from sleep on the couch in her sister's apartment at 46 Great Hill Road by someone's banging on the front door.   Kiana Alston, who had been asleep upstairs, also heard the banging and ran down the stairs to the front door.   When Anglin opened the door, she saw Adam Alston wearing a thermal undershirt, unzipped pants and no shoes, despite the cold weather.   He was shaking, crying and very upset.   He stated:  “Oh Lord, oh, Lord, Michael done shot Mona and the kids and caught them on fire.”   Anglin immediately dialed 911.

Upon arriving at the scene, James Sopelak, a firefighter with the East Hartford fire department, observed flames coming from a second floor window of 42 Great Hill Road. After entering the apartment, Sopelak found a girl lying at the top of a landing on the stairs.   Not knowing whether the girl was alive, Sopelak carried her outside and placed her on the lawn.   John Colli, a fire department engine company captain, checked for a pulse and determined that the girl, later identified as Alexis Kendall, was deceased.   Firefighters Daniel Wasilewski and Richard Stepp then entered the apartment.   Upon searching the front bedroom, Wasilewski discovered two more victims, later identified as Ramona Kendall and Kayla Kendall.   Wasilewski discovered one victim by the bedroom door and the other near the front window of the bedroom.   He concluded that neither victim was “viable” and left both bodies where he had found them.

Michael Laraia, an employee of the state fire marshal's office, investigated the cause and origin of the fire.   On the basis of his investigation, he determined that the fire had two separate origins;  the landing on the staircase where the first victim had been found and the front bedroom where the next two victims had been found.   Laraia concluded that the cause was of ‘deliberate human hand and design.’   Forensic pathologists from the chief medical examiner's office performed autopsies, the results of which revealed that the cause of death of each victim was a gunshot wound to the head.   The medical examiners opined that each victim died before the fire started.   They based that determination on the lack of soot in the victims' airways and the lack of carbon monoxide in their blood.

Thereafter, the police attempted to locate the defendant.   On January 12, 2004, Michael Allen, a Hartford police officer, responded to a call reporting that the defendant had been seen near Asylum Avenue.   Allen found the defendant on a staircase inside an apartment building on Asylum Avenue.   At the time of his arrest, the defendant had a fully loaded .38 caliber revolver in his left front pants pocket.   The bullets recovered from the bodies of the victims were found to have been fired from the handgun found in the defendant's possession at the time of his arrest.   Also found on the defendant were newspaper obituaries from all three victims.

The defendant testified at trial.   He denied killing the victims.   According to the defendant, he was awakened on the morning in question by popping or crunching sounds.   When he got up to investigate the sounds, he saw that the apartment was on fire and noticed a person lying at the top of a flight of stairs.   He testified that he saw a gun, which he previously had found in his deceased uncle's clothing, at the bottom of the stairs.   He took the gun and fled.”  State v. Kendall, supra, 628–31.

Despite discovering his family incapacitated and his home ablaze, the petitioner made no attempt to assist his former wife and young daughters;  nor did he try to quell the fire or contact emergency services;  nor did he alert his former father-in-law or any neighbors of their perilous predicament.   Instead, he retrieved the handgun used to murder his family and some ammunition and then fled the scene.   All this transpired on the very day he was mandated to leave the home in accordance with a dissolution of marriage court order.   He declined to attend the funerals of his daughters despite knowledge of the time and place.   After reloading it, the petitioner kept the murder weapon on his person until he was apprehended around a month later.

The petitioner's allegation that his trial counsel ought to have pursued a third-party perpetrator defense is premised on a putative connection between drug trafficking and his former wife and/or her extended family.   No relevant evidence was offered at the habeas trial to support this claim.   Vague assertions of possible motive to harm a victim harbored by unknown parties is inadmissible, State v. Jackson, 304 Conn. 383, 423 (2012);  Bryant v. Commissioner, 290 Conn. 502, 513–15 (2009).

Additionally, this assertion, based on the incontrovertible evidence in this case, is, frankly, preposterous.   Somehow, an unknown malefactor knew the location of the firearm which the petitioner had hidden some days earlier.   The unknown assailant supposedly relied on retrieval of the petitioner's weapon rather than carrying his or her own handgun to the residence to commit the homicides.   The murderer selectively shot the petitioner's ex-wife and her two children but not the petitioner, who remained asleep in his bed.   The unknown perpetrator then carelessly discarded the murder weapon at the scene even though precious time was taken by the killer to try to conceal the homicides through arson and to reload the gun with bullets.

All this coincidentally occurred on the night before the court-ordered deadline for the petitioner to leave the premises, an order with which the petitioner had exerted no effort to comply;  petitioner's father-in-law identified the petitioner as the person he saw shooting his granddaughter as she screamed, “No Daddy!”;   that the petitioner recovered the murder weapon and ammunition and carried it on his person for a month;  and that he claimed ignorance of the funeral details despite having a newspaper clipping containing that information in his pocket.

III

The second count of the amended complaint is a purported due process violation based on various trial judge errors.   The respondent has alleged that the petitioner is prohibited from obtaining habeas relief for this claim because of his procedural default.   All of the alleged judicial errors were either raised on direct appeal and were rejected or were never raised despite the procedural opportunities available to address them at the criminal trial or on appeal.

In Johnson v. Commissioner, 218 Conn. 403 (1991), our Supreme Court adopted the “cause and prejudice” standard espoused by the U.S. Supreme Court in Wainwright v. Sykes, 433 U.S. 72 (1977) which standard limits the reviewability of claims first raised in a habeas corpus action.   In Johnson, supra, the cause and prejudice test was made applicable to procedural defaults which occurred at the trial level.   This standard was extended to apply to the failure to raise claims on appeal in Jackson v. Commissioner, 227 Conn. 124, 132 (1993).   The burden of proving good cause and prejudice for procedural defaults rests with the habeas petitioner.  Johnson v. Commissioner, supra, 409.

In this case, the petitioner submitted no evidence of any good cause justifying his failure to assert any previously omitted trial misconduct claim at trial or on appeal.   Good cause must be external to the defense and be some factor besides attorney error.  Jackson v. Commissioner, supra, 137.   The mere failure of counsel to recognize the factual or legal ground does not constitute good cause to excuse default.  Parker v. Commissioner, 27 Conn.App. 675, 682 (1992), cert. denied, 223 Conn. 909 (1992).

Therefore, the petitioner has failed to prove good cause and prejudice for these claims of trial level errors, and the second count provides no basis for habeas relief.

The amended petition is denied on all counts.

Sferrazza, S.J.

Sferrazza, Samuel J., S.J.