Opinion
CV145037563S
08-15-2017
Anthony Carter v. State of Connecticut
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Before the court is the motion for summary judgment of the defendants, State of Connecticut Attorney General's Office and State of Connecticut State's Attorney Office. The complaint of the plaintiff, Anthony L. Carter, seeks a new trial, pursuant to General Statutes § 52-270, on the grounds that the admissibility of evidence and plaintiff's convictions were obtained by fraud. In the view of the defendants, the complaint is filed more than eight years passed the running of the statute of limitations. For the reasons set forth below the court grants the defendants' motion for summary judgment.
General Statutes § 52-270 provides that: " (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 of the action 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 have not adequately protected their rights during the original trial of an action. (b) An affidavit signed by any party or his or her attorney shall be presumptive evidence of want of actual notice."
FACTS
On January 17, 2014, the plaintiff, Anthony L. Carter, commenced this action against the defendants, the State of Connecticut Attorney General's Office and State's Attorney's Office. The plaintiff alleges the following facts. In the matter of State v. Anthony Carter, Superior Court, judicial district of Hartford, Docket No. CR01-553550, the plaintiff was charged with assault in the first degree, in violation of General Statutes § 53a-59(a)(5); attempt to commit assault in the first degree, in violation of General Statutes § § 53a-49(a)(2) and 53a-59(a)(5); injury to a child, in violation of General Statutes § 53-21(1); and criminal possession of a firearm, in violation of General Statutes § 53a-217(a)(1). The former State's Attorney, James E. Thomas, represented the State during the criminal proceedings against the plaintiff. On or about May 20, 2002, following a jury trial, the plaintiff was found guilty as charged. On or about August 20, 2002, the court, Mulcahy, J., sentenced the plaintiff to a total effective sentence of twenty-seven years of incarceration. The plaintiff appealed his conviction but did not appeal the issue claimed in the present action.
The plaintiff's summons lists the State of Connecticut as a defendant with an address of the Attorney General's Office in Hartford. The plaintiff also lists the State of Connecticut as a defendant with an address of the State's Attorney's Office in Hartford. The court will collectively refer to the entities as the " defendants."
Count one of the plaintiff's complaint, alleges that the prosecuting authority obtained the admissibility of the nine millimeter shell casings by means of fraud. The court, Mulcahy, J., denied the plaintiff's pre-trial motion in limine seeking to exclude the nine millimeter and .45 caliber shell casings from the trial. During the motion in limine hearing, the State's Attorney argued that the firearm evidence should be admitted to show there were two people exchanging gunfire at the location and time in question. The plaintiff renewed his objection to the admission of the firearm evidence during the trial but his objection was overruled. In paragraphs twenty-eight, through thirty-one of count one, the plaintiff alleges that the State's Attorney engaged in fraud by making false representations during the motion in limine hearing regarding the firearm evidence, whether by his words or conduct, with an intent to deceive the court in order to obtain a ruling in the State's favor. The plaintiff requests that the court reverse the plaintiff's criminal conviction on all four counts and restore the matter to the regular criminal docket.
On October 20, 2016, the defendants filed a motion for summary judgment on the ground that the plaintiff's petition was filed eight and one-half years after the statute of limitations. The defendants submitted a memorandum in support of their position. The defendants also filed the following exhibits: (A) the amended information dated May 16, 2002; (B) a transcript of hearing on motion in limine held on May 2, 2002; (C) a partial transcript of trial's court ruling on the motion in limine on May 6, 2002; (D) the State's brief to the Appellate Court in State v. Carter, 122 Conn.App. 527, 998 A.2d 1217 (2010); (E) State's brief to the Appellate Court in State v. Carter, 131 Conn.App. 905, 28 A.3d 360 (2011); and (F) State's brief to the Appellate Court in State v. Carter, 142 Conn.App. 156, 64 A.3d 366 (2013).
The plaintiff filed an opposition to the defendants' motion for summary judgment on December 30, 2016. The plaintiff submitted a memorandum of law in support of his opposition. The plaintiff also filed a sworn affidavit and the following exhibits: (1) the motion in limine exhibit list; (2) Hartford Police Detective Edwin Soto's report; (3) the transcript of Maurice Miller's plea c[a]nvassing; (4) a Hartford Courant news article; (5) the State's information dated April 17, 2002; and (6) an arrest warrant for the plaintiff's arrest. The defendants filed a reply on April 28, 2017, attaching a new exhibit, " Exhibit G, " which is a memorandum of decision from Carter v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV-07-4002005, (January 22, 2010, Nazzaro, J.). The plaintiff filed an objection to the defendants' reply brief on May 4, 2017. The plaintiff filed a sur-reply on June 1, 2017. The plaintiff submitted four additional exhibits with his sur-reply: (6) the Hartford Courant article previously submitted as exhibit 4; (7) an excerpt of summations from State v. Carter, Docket No. CR01-0553550; (8) an excerpt of the motion for judgment of acquittal; and (9) an excerpt of the plaintiff's direct appeal brief. The court heard argument on May 8, 2017. Additional facts will be set forth as necessary.
At oral argument, the plaintiff made an oral motion to strike the defendants' reply brief on the ground that the court did not give the defendants' permission to file the reply. The court overruled that motion and gave the plaintiff thirty days to respond to the defendants' reply brief.
STANDARD
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). " [S]ummary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period." (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 471, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006).
DISCUSSION
The defendants assert that, pursuant to General Statutes § 52-582, the plaintiff's petition for a new trial is barred because it was not filed within three years of the date of sentencing. Entry #120, Memorandum of Law in Support of Defendants' Motion for Summary Judgment, p. 5. Additionally, the defendants contend that the plaintiff's allegations of fraud must fail and, as a result, do not toll the running of the statute of limitations. Id., p. 6-10. Finally, the defendants assert, in the alternative, that summary judgment is warranted because no genuine issue of material fact exists. Id., p. 11.
In response, the plaintiff argues that he can establish a genuine issue of material fact, in that his petition for a new trial is not time barred because there was a fraud was committed on the court. Docket Entry #125, Memorandum of Law in Support of Petitioner's Opposition to Respondent's Motion for Summary Judgment, p. 1. The plaintiff contends that the State's Attorney obtained the admissibility of the nine millimeter shell casings by means of fraud. Id., p. 14. First, the plaintiff argues that the State did not tell the court that the State was not charging the plaintiff with possessing and firing a specific caliber weapon. Id., p. 11-12. Second, the plaintiff contends that the State's Attorney intended to have the court infer that the nine millimeter casings caused the victim's injuries. Id., p. 14.
a. Statute of Limitations
General Statues § 52-582 provides that: " No petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of, except that a petition based on DNA (deoxyribonucleic acid) evidence that was not discoverable or available at the time of the original trial may be brought at any time after the discovery or availability of such new evidence." The three-year statute of limitation period, for petitions for a new trial, begins to run from the date of judgment rendered by the court. See Summerville v. Warden, State Prison, 229 Conn. 397, 426, 641 A.2d 1356 (1994); see also Barrett v. Commissioner of Correction, 106 Conn.App. 710, 713 n.2, 943 A.2d 1107 (2008). In a criminal matter, judgment is deemed to be rendered when the trial court imposes a sentence. See Summerville v. Warden, State Prison, supra, 229 Conn. 426.
In the present case, the plaintiff alleges in paragraph five of his petition that he was sentenced on August 2, 2002. According to § 52-582, the plaintiff's period for filing a petition for a new trial ended on August 2, 2005. The plaintiff commenced this action on January 17, 2014. Therefore, the court concludes that the defendants' petition is barred by the statute of limitations pursuant to § 52-582 unless otherwise saved.
b. Tolling of Statute of Limitations Due to Fraud
In Holliday v. State, 111 Conn.App. 656, 960 A.2d 1101 (2008), cert. denied, 291 Conn. 902, 967 A.2d 112 (2009), the Appellate Court affirmed the trial court's ruling that the plaintiff's petition for a new trial, which was filed pursuant to General Statutes § 52-270, was barred by the applicable statute of limitations. The plaintiff argued that his petition was timely because the statute of limitations was tolled by the defendants' fraudulent concealment of evidence. Id., 663. The Appellate Court found that the plaintiff failed to present evidence that the defendant, not an outside third party, fraudulently concealed evidence. Id., 663. In doing so the court stated that: " To prove fraudulent concealment, the petitioner would have been required to show that the respondent (1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the cause of action, (2) intentionally concealed these facts from the petitioner and (3) concealed the facts for the purpose of obtaining a delay on the petitioner's part in filing a complaint on their cause of action . . . Moreover, the petitioner would have been required to prove that the respondent had concealed the cause of action by the more exacting standard of clear, precise and unequivocal evidence." (Citation omitted.) Id., 664 n.5.
In the present case, the plaintiff seeks to establish fraudulent concealment. The plaintiff essentially alleges that the State's Attorney made false representations to the court, through his words or conduct, in an effort to deceive the court and obtain a ruling in the State's favor by arguing the following: (1) the nine millimeter evidence supports the fact that plaintiff fired a nine millimeter weapon in alleyway on Enfield Street; (2) the plaintiff possessed and fired a nine millimeter firearm and that those facts were for the jury to decide; (3) the amended information charging the plaintiff alleged that the plaintiff fired a nine millimeter firearm; and (4) the bullet that struck that the victim that was recovered from or near the victim's body, was identified as a nine millimeter and that the presence of the nine millimeter casings had a tendency to establish those facts. (Plaintiff's petition ¶ ¶ 28-31.)
The defendant has submitted evidence, attached to its motion for summary judgment, which directly contradicts the plaintiff's allegations. In the defendants' Exhibit B, the State's Attorney argues that the shell casings, at issue during the hearing, were found " in and around an alleyway where witnesses say two individuals traded gunfire with handguns." (Plaintiff's Exhibit B p. 15.) As a result, the State's Attorney argued that the ballistic results " are consistent with the evidence that two individuals were trading gunfire in that alleyway, and supports that [theory]." Id., p. 15. The court finds that the State's Attorney's argument, during the motion in limine hearing, was tailored to address the basis of the plaintiff's motion that the State could not prove any connection between the shell casings and the defendant, nor any connection between the shell casings and the injuries sustained by the victim. Exhibit B clearly demonstrates that the State's Attorney did not represent that the plaintiff possessed or fired a nine millimeter handgun or that the victim was injured by a nine millimeter bullet. Moreover, defendants' exhibit A, establishes that the State charged him with possession of a firearm, not possession of a nine millimeter handgun.
The plaintiff has not proven, by clear, precise and unequivocal evidence, that there was any fraudulent concealment on the part of the State's Attorney. The plaintiff's petition and arguments in opposition of the motion for summary judgment are devoid of any allegations that would speak to the elements necessary to establish a fraudulent concealment and are contrary to nearly every piece of evidence submitted by the defendants. See Holliday v. State, supra, 111 Conn.App. 664 n.5. The court holds that the plaintiff has not established that fraud tolls the statute of limitations in the present case.
CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is granted.