Opinion
No. CV-99-0423653 S
September 1, 2004
MEMORANDUM OF DECISION ON PETITIONER'S SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, by counsel, has filed a one-count second amended petition for a writ of habeas corpus. The petition alleges that he is in the custody of the respondent as the result of a sentence that was imposed following a conviction of murder and conspiracy to commit murder. The petition further alleges that the petitioner's confinement is illegal in that he was deprived of effective assistance of counsel in violation of his state and federal constitutional rights.
The petitioner was the defendant in the criminal case of State of Connecticut v. Mark Bova, CR 93-0092663, Judicial District of Ansonia/Milford at Milford, wherein he was charged with murder in violation of General Statutes § 53a-54a(a), and conspiracy to commit murder in violation of General Statutes § 53a-54a(a) and § 53a-48(a). After a jury trial conducted by Judge Joseph Gormley he was convicted of both offenses, and on February 21, 1995 he was sentenced to a total effective sentence of sixty years, which sentence he is now serving. The judgments were upheld on direct appeal. State v. Bova, 240 Conn. 210 (1997). The petitioner was represented at trial and on appeal by Attorney John Williams.
This case came before this court for trial on July 21, 2004. The petitioner and the respondent offered no testimony. The petitioner chose to rest his case on the documents submitted with his notices of expanded record filed on April 16 and April 25, 2002. Submitted on April 16 were pages 18-21 from the November 15, 1994 criminal trial transcript, the decision of the Connecticut Supreme Court on the petitioner's direct appeal, the criminal trial and sentencing transcript, and the sentencing transcript in the case of State v. Diane Donofrio. Submitted on April 25, 2002 were page 20 from the sentencing remarks of Judge Gormley on April 6, 1995 in the case of State v. Diane Donofrio, and copies of the decisions of the Connecticut Appellate Court, the Connecticut Supreme Court, and the United States Supreme Court in State v. Hobson, CT Page 13581 8 Conn.App. 13 (1986), cert. den. 201 Conn. 808, writ of certiorari denied, Hobson v. Connecticut, 480 U.S. 917 (1987).
The second amended petition alleges that Mr. Williams was ineffective because he "failed to adequately protect petitioner's right to an impartial jury," and that he "failed to adequately protect petitioner's trial rights when it became apparent the jury was deliberating before the close of all evidence."
The state and federal constitutions guarantee the petitioner the right to receive effective assistance of counsel at trial.
The petitioner's right to effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution and article first, § 8, of the Connecticut constitution. "The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chace v. Bronson, 9 Conn.App. 674, 678, 564 A.2d 303 (1989)." Williams v. Bronson, 21 Conn.App. 260, 263, 573 A.2d 330 (1990). "In order to prevail in a habeas corpus challenge, 'the petitioner "must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962)." D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984).' Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989)." Sherbo v. Manson, 21 Conn.App. 172, 180-81, 572 A.2d 378 (1990). "In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal." Magnotti v. Meachum, 22 Conn.App. 669, 674, 579 A.2d 553 (1990); see Riggs v. Warden, 26 Conn.App. 52, 55, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991)."
'A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.' Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 200 (1989)." Fair v. Warden, 211 Conn. 398, 402, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S.Ct 512, 108 L.Ed.2d 514 (1989).
"With regard to the performance component of this inquiry, 'the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" Aillon v. Meachum, supra, 211 Conn. 357. "The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised. Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). The defendant is also not guaranteed assistance of an attorney who will make no mistakes. United States v. Campbell, 616 F.2d 1151, 1152 (9th Cir. 1980). '"What constitutes effective assistance [of counsel] is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation." Peoples v. Baldi, 54 N.Y.2d 137, 146, 429 N.E.2d 400, 444 N.Y.S.2d 893 (1981).' Levine v. Manson, 195 Conn. 636, 649, 490 A.2d 82 (1985)." Giannotti v. Warden, 26 Conn.App. 125, 130, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992); see also Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991).
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy' . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Citations omitted.) Strickland v. Washington, supra, 466 U.S. 689-90; see also Quintana v. Warden, 220 Conn. 1, 593 A.2d 964 (1991); Williams v. Warden, 217 Conn. 419, 586 A.2d 582 (1991).
Robert Jeffery v. Commissioner of Correction, 36 Conn.App. 216, 218-20.
The Supreme Court opinion stated that the jury reasonably could have found the following facts:
". . . On January 29, 1992, at approximately 1:12 a.m., the defendant, accompanied by his father, approached Michael Pace, an officer of the Orange police department, in the Stop and Shop Supermarket parking lot in Orange. The defendant told Pace that he wanted to report that his wife, Susan Bova, was missing. According to the defendant, his wife had left their Ansonia home to go shopping between 7 and 7:30 p.m. the preceding evening and had not returned. The defendant further stated that he had just discovered his wife's car, a Chevrolet Cavalier, parked across the street from the Stop and Shop Supermarket in the parking lot of the Bradlees Department Store (Bradlees).
Pace then followed the defendant to the Cavalier, searched the vehicle and found only a plastic bag of clothing in the trunk. After Pace had completed a missing person report, the defendant drove the Cavalier home. CT Page 13584
Shortly thereafter, the West Haven police department was notified that the body of a woman had been found in a soccer field near the Bradlees parking lot. The defendant was so informed by the police, and he immediately proceeded to the field. Upon his arrival there, he was shown the body, which he identified as his wife. According to the testimony of several police officers, including Officers Usha Carr and Louis Matteo of the West Haven police department, the defendant showed no emotion upon viewing his wife's body.
The defendant cooperated with the police investigation of his wife's death, consenting to a search of his home and to a second search of the Chevrolet Cavalier later in the day on January 29. Although the investigating officers found no evidence causing them to link the defendant to the murder, two West Haven police officers, including Matteo, observed that the defendant's entire home recently had been thoroughly cleaned and vacuumed. The officers also noticed sawdust on the floor of the garage, most of which had been swept up and deposited into a small metal container located in the garage. Finally, the officers observed several wood chips on the passenger seat of the Cavalier.
During the investigation, the defendant told the police about an extramarital affair that he had had with Diane Donofrio. According to the defendant he began the affair with Donofrio in 1985, three years after his marriage to the victim. In addition to evidence of the defendant's relationship with Donofrio, there was evidence of the generally unstable nature of the defendant's marriage to the victim. Specifically, the couple had separated on two occasions, and the victim had commenced divorce proceedings against the defendant in the year preceding her death. The victim had withdrawn the marital dissolution action in November 1991, after she and the defendant had reconciled.
The evidence also revealed that the defendant was suffering from financial difficulties. In 1984, the defendant had left his job as a produce manager at a grocery store and borrowed $180,000 from his parents to start an automotive supply business with his brother. The business failed, however, and the defendant returned to a lower paying position at the grocery store. At the time of the victim's death, the defendant still owed monthly payments of over $500 to his parents. There was also evidence that the defendant, as the primary beneficiary under two life insurance policies issued to the victim totaling $296,900, was in a position to benefit financially from her death.
Four months after the victim's death, the West Haven police sought and obtained a search warrant for the defendant's home. The affidavit in support of the warrant indicated that wood particles and synthetic fibers resembling carpet had been discovered on the clothing worn by the victim at the time her body was discovered. The search warrant authorized the police to search the defendant's home for such materials. Upon execution of the search warrant, the police seized carpet fibers and wood fragments that matched those found on the victim's clothing.
In May 1993, the defendant terminated his relationship with Donofrio and moved in with another woman. Two months later, Donofrio contacted the West Haven police to report that the defendant had killed the victim. Thereafter, Donofrio explained that she and the defendant had discussed his plans to murder the victim at least one week prior to the murder. Specifically, the defendant told Donofrio that he loved her and could not afford a divorce, that he intended to kill the victim by strangulation, and that he would commit the murder on a Tuesday because he did not work on Wednesday.
Donofrio testified that the defendant telephoned her between 6 and 6:30 p.m. on Tuesday, January 28, 1992, to tell her that he was in the process of killing the victim and that he needed her assistance. When Donofrio arrived at the defendant's home a few minutes later, she found the defendant and the victim in the couple's bedroom. The victim was lying on the bed, face down and unconscious. The defendant, who was on top of the victim, was strangling her with an extension cord. Because the victim continued to exhibit a pulse, the defendant began to strangle her manually, holding his thumbs on the back of her head and his fingers at the front of her neck. Donofrio then helped the defendant move the victim from the bed onto the floor, where they took turns smothering her with a pillow until she had no pulse.
Shortly thereafter, the defendant awoke his one year old son and strapped him into an infant seat in the back seat of Donofrio's car. The defendant gave Donofrio the extension cord, the pillow and the victim's pocketbook and instructed Donofrio to meet him at the Bradlees parking lot in Orange. Donofrio then left the defendant's home and drove to the Bradlees parking lot. Approximately twenty minutes later, the defendant arrived at the parking lot, driving the victim's Cavalier. The defendant explained to Donofrio that he had moved the victim's body to his garage, placed it in the Cavalier, and then driven to the soccer field, where he had discarded the body. The defendant left the Cavalier in the Bradlees parking lot, and Donofrio gave him and his son a ride home. According to Donofrio, she later placed the pillow in a charity's used clothing bin, gave the infant seat to a coworker, and placed the other objects in the trash.
The forensic evidence presented at trial corroborated Donofrio's testimony. The medical examiner testified that the victim had died from strangulation by a long, thin ligature, such as a lamp cord. In addition to two separate sets of ligature marks on the victim's neck, bruises on her neck indicated that she also had been strangled manually. An examination of the victim's voice box revealed a pattern of broken bones consistent with Donofrios testimony that the victim had been strangled from behind. The medical examiner further indicated that the assault on the victim had lasted for up to twenty to thirty minutes. In addition, hairs similar to those of the defendant were found on the victim's jacket, and hairs similar to those of Donofrio were found on the victim's pants. Finally, because there was no sign of a struggle at the location where the victim's body was found, it appeared that the victim had been killed somewhere else, and that her body had been transported to the field."
State v. Bova, supra, 213-18.
The claim of ineffective assistance of counsel relates to events that occurred on November 14 and 15, 1994, during the course of the criminal trial. The key witness in the case against the petitioner was his former girlfriend, Diane Donofrio. Ms. Donofrio had given statements to the police incriminating the petitioner and herself and had also been arrested and charged with aiding murder and conspiracy to commit murder in the murder of the petitioner's wife. She was testifying as a state's witness, giving very damaging testimony against the petitioner. In the presence of the jury, Mr. Williams was cross-examining her, attempting to show that she had received favorable treatment from the police in exchange for her testimony, and thereby impeaching her credibility. He asked her several questions concerning the terms of her release from custody and in each question he made reference to her release under a "non-surety bond." Ms. Donofrio admitted that she had been released on a $100,000 non-surety bond. The appearance bond was marked as an exhibit and shown on an overhead projector to the jury. Shortly thereafter, court adjourned for the day.
The following morning Mr. Williams resumed his cross-examination of Ms. Donofrio in the absence of the jury. After a few minutes of cross-examination, the jury was brought into the courtroom. At that point the court stated that it had received a note from someone on the jury which he would take up later after he talked to counsel. Mr. Williams then asked several questions in the presence of the jury. There was an objection, and the jury was excused again. After some argument and further brief cross-examination by Mr. Williams the jury returned to the courtroom. After a few more questions by Mr. Williams and an objection by the state's attorney, the jury was excused again. None of the testimony related to the subject of the non-surety bond. After the court ruled on the state's objection, the court then read the note from the jury which had been mentioned earlier. The note was unsigned and stated "What is a non-surety bond? We're confused as to what this means."
At this point the court indicated that it only would tell the jury that they would have to deal with what the evidence is, unless both counsel wanted the court to give some instruction as to what a non-surety bond is. Mr. Williams suggested that the question by the jury should be answered, and, since the question suggests that the jury is deliberating, that the jury should be told that they should not be deliberating. The state's attorney objected to the question being answered but agreed that the jury should be instructed that they should not be deliberating at this point. The court decided not to answer the jury's question. The jury then returned to the courtroom and the transcript reflects that the following occurred:
THE COURT: All right, ladies and gentlemen, before we proceed with the cross, I did deal with counsel on the question that was raised and I will read that into the record. There was a note, unsigned. It reads as follows: "What is a non-surety bond? We're confused as to what this means." I have marked that as a Court Exhibit and my answer simply is, unfortunately, I cannot add evidence in a case or define terms that this — . The evidence is presented here by the lawyers and I can't get involved in that and the only other thing I would say, and I don't want to — . I'm saying this out of an abundance of caution and this is, I indicated at the very beginning you're not allowed to begin any kind of deliberations in the matter until the end and I'm just cautioning you that you can't get — . To the extent that you may have been doing that, you kind of can't do that until the end, okay? I'm sorry, that's as far as I can go with that question. Mr. Williams?
MR. WILLIAMS: Thank you, Your Honor.
The cross-examination of Ms. Donofrio then resumed.
The petitioner's allegation that Mr. Williams was ineffective is based entirely on the claim that the question by the jury shows that at least two jurors were discussing the evidence, that Ms. Donofrio was the key state's witness, and therefore Mr. Williams should have requested a hearing concerning the conduct of the jurors. It is claimed that it is an error of constitutional magnitude for a court to permit jurors to discuss the case among themselves before the case is submitted to them for decision, and that defense counsel should have requested a hearing so as to put the state to its burden of proof concerning the impartiality of the jury.
As indicated above, in order to prove ineffective assistance of counsel, the petitioner must overcome the presumption that trial counsel's actions were sound trial strategy.
Mr. Williams did not testify in the habeas proceedings, nor was any evidence offered to rebut the strong presumption of reasonable professional assistance which the court must afford to defense counsel's conduct. As pointed out in the respondent's brief, defense counsel may have made the tactical decision not to request a hearing for fear of alienating or embarrassing one or more jurors at a point in time when they were focusing on the impeachment evidence. The record demonstrates that Mr. Williams was not unaware that the jury may have been engaging in premature discussion of the evidence. It was he who suggested that the court instruct as it did. The petitioner has failed to overcome the presumption that Mr. Williams' handling of the matter of the note from the jury might be sound trial strategy, and has failed to prove that defense counsel was deficient in his representation of the petitioner.
Even though some of the jurors may have discussed the meaning of the term "non-surety bond," in the overall context of the trial, and when one considers the many other areas of impeachment of Ms. Donofrio raised by a very skillful defense counsel, the issue raised by the note was of relative insignificance. In addition, the court promptly instructed the jury that they should not engage in premature deliberations, an instruction which the jury is presumed to have followed.
The second prong of the Strickland test requires the petitioner to prove that, but for counsel's conduct, there is a reasonable probability that the result of the trial would have been different. Strickland further defines a reasonable probability as a probability which is sufficient to undermine confidence in the outcome. The petitioner has not met that burden of proof and therefore he has failed to prove prejudice.
The second amended petition is dismissed.
Hadden, Judge T.R.