Opinion
No. CV06-4001410S
February 19, 2009
DECISION
THE COURT: The Court has reviewed the evidence, listened to the testimony, has reviewed the exhibits and also reviewed the one exhibit in evidence, the decision by Judge Fuger, and reaches the following findings.
The Court need not reiterate all of the facts as were found and set forth in the memorandum of decision by Judge Fuger dated February 25, 2004, Respondent's A.
I will indicate as a preliminary matter, it is clear, based upon the prior habeas proceeding and also the Supreme Court case which was referenced, which the Court certainly can take judicial notice of, and that is State v. Cator, 256 Connecticut 785, 2001, wherein the Court reviewed the facts, and again, this habeas court, or Judge Fuger, set forth those facts in the memorandum of decision which was referenced, the petitioner obviously was the defendant in the criminal case in Fairfield under Docket Number CR96-0118578 and CR96-0118587 in which he was charged with capital murder, in violation of Connecticut General Statute Section 53a-54(c), murder in the first degree, in violation of Connecticut General Statute Section 53a-54(a), conspiracy to commit murder, in violation of Connecticut General Statute Section 53a-48 and 54(a), kidnapping in the second degree, in violation of Connecticut General Statutes 53a-94 and conspiracy to commit kidnapping, in violation of Connecticut General Statute Section 53a-48 and 94.
On October 21, 1997 the petitioner was found guilty of murder, felony murder, conspiracy to commit murder, kidnapping in the second degree and conspiracy to commit kidnapping.
This Court finds further the petitioner indeed came back to court for sentencing on March 6th, 1998 and at the time the Court, Sarsfield Ford, imposed a total effective sentence of imprisonment for 55 years, suspended after the service of 45 years, to be followed by five years probation.
On October 9, 1999, pursuant to a motion to correct the sentence filed by the state, the Court changed the sentence from 55 years to 50 years.
This petitioner appealed his conviction unsuccessfully to the Connecticut Supreme Court in State v. Cator, 256 Connecticut 785, 2001, wherein the Court affirmed the conviction.
The petitioner appealed the decision by Judge Fuger in the habeas court and the appeal again was unsuccessful and reported at Cator v. Warden, 92 Conn.App. 241, 2005.
The Court finds that the petitioner, as a defendant in his underlying criminal proceedings, has not filed a motion for new trial pursuant to Connecticut General Statute Section 52-270 or, indeed, 52-582, or any other section of the statutes or practice book.
That notwithstanding, the petitioner now seeks to have this Court restore his right to file a petition for a new trial.
It is clear that section 52-582 of the general statutes 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 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.
52-270 of the Connecticut General Statutes further provides that the Superior Court may grant a new trial in any action that may come before it, for mispleading, the discovery of new evidence and further bases set forth in the statute.
What's clear is that the petitioner is making the argument that the acquittal of Mr. Johnson constitutes new evidence which the petitioner argues would be the basis for a motion for a new trial, which, if reviewed, would then be granted by a court.
Our Connecticut Code of Evidence, Section 4-1 defines relevant evidence to mean evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.
There is a fundamental decision which the Court evaluates as to whether or not the acquittal constitutes evidence.
I think the analysis can be assisted by looking at the decision of State v. Colon, 257 Connecticut 587, 2001, a Connecticut Supreme Court decision where, as noted by counsel, the court specifically dealt with the issue of acquittal on a charge of conspiracy and whether or not that scenario necessarily would require a not guilty or acquittal of similar charges for the co-conspirator. Much of the analysis in the case law that's referenced by the Supreme Court in Colon appears to be applicable here in evaluating this issue of whether the acquittal constitutes evidence.
The Court in Colon at page 600 stated that when co-conspirators are tried separately, the acquittal of one on charges of conspiracy should not dictate the acquittal of the other simply because the state in one case has failed to prove an element necessary to a conspiracy charge.
The Court goes on to note that principles of collateral estoppel do not bar a prosecution of one conspirator after acquittal of a sole conspirator in a criminal trial where the acquittal of a co-defendant in a separate trial could, as the Court analyzed, result from a multiplicity of factors completely unrelated to the actual existence of a conspiracy; for example, certain evidentiary issues that might render evidence inadmissible in one trial, but not in the other.
At page 603 in the Colon decision the Supreme Court, quoting from a United States Supreme Court decision . . . actually quoting from a District Court of Connecticut decision which cites Supreme Court authority, that an unsuccessful prosecution of an alleged co-conspirator in a separate trial means nothing more than on a given date the prosecution failed to meet its burden of proving the defendant guilty beyond a reasonable doubt and all of the elements constituting conspiracy. It certainly does not mean that a conspiracy did not occur. It has long been recognized that criminal juries in the United States are free to render not guilty verdicts resulting from compromise, confusion, mistake, leniency or other legally or logically irrelevant factors.
That language actually was from a Connecticut Supreme Court case, State v. Robinson, 213 Connecticut 263, citing Dunn v. United States, a 1932 U.S. Supreme Court case at 284 U.S. 390, pages 393 and 394.
The Court in Colon went on to state, consequently, an acquittal is not to be taken as an equivalent of a finding of the fact of innocence, nor does it necessarily even reflect a failure of proof on the part of the prosecution.
The Court goes on to state, while symmetry of results may be intellectually satisfying, it is not required.
I think the analysis in Colon is applicable to the analysis here. In looking at the code of evidence and the standards of relevance, this Court finds that the acquittal of Mr. Johnson as the principal would not constitute evidence, as that term is defined to mean new evidence which has a tendency to prove or disprove a fact in issue under either the Connecticut evidence code or case law for all of the policy reasons noted by the Court in Colon, that being a fundamental error, and this Court finds further that no reasonable jurist would conclude otherwise.
The acquittal does not constitute new evidence which would then be the basis of a motion for a new trial likely to be granted by any court, and this Court finds that no reasonable jurist would differ in the denial of said motion, even if this Court had the authority, or within its plenary powers, or recognizing that this Court is a Court of extraordinary relief would order that the petitioner's right to file a motion for a new trial is restored.
This Court does not find any constitutional deprivation which can be construed under the due process clause, as that is applicable to the states . . . either under the Connecticut Constitution or the U.S. Constitution, and if for some reason this claim can be considered within the rubric or ambit of an actual innocence claim, for reasons stated by the respondent, that claim was already litigated, indeed, before Judge Fuger in the prior habeas proceeding and the petitioner has not articulated why this Court should revisit that issue.
However, the Court recognizes explicitly the petitioner is asking for a different analysis than actual innocence in all the case law dealing with potential new trial and he's asking instead for the restoration of a motion for a new trial where, as the Court is aware, the standard of proof is a lesser degree.
No authority has been put forward to the Court to require this Court to grant extraordinary relief where there has been no showing of prejudice or error of constitutional dimension to explain why a motion for a new trial was not previously filed by any trial counsel of Mr. Cator.
Indeed, the Court's mindful that other proceedings, including an appeal and a habeas, followed his underlying conviction and the Court will not speculate as to the tactics of counsel, if any, in not pursuing the motion for a new trial.
The Court, in listening to the testimony of the petitioner, does not accredit the testimony of the petitioner and recognizes the petitioner is a convicted felon and attaches little weight to the petitioner's testimony that he desired that all evidence be explored, including a motion for a new trial, and for some reason that motion was never filed.
For the foregoing reasons, the petition is denied. Judgment may enter for the respondent.
The petitioner is ordered to prepare a judgment file. I am requesting that the clerk notify counsel for the petitioner and the petitioner his notice of rights pursuant to law regarding appeal.
In addition, I'm ordering a transcript of this on-bench ruling be prepared. I will sign it. It will become a part of the formal record.
With that, this matter is concluded.
MR. MULLANEY: And I would ask, Your Honor, that since you're going to ask that a transcript be prepared, can the date run from your signing and the sending out of that, any dates necessary for me to perfect any post judgment matters?
THE COURT: The request is denied and it will run from today, and the record shall reflect the marshal handed the petitioner his notice of rights.
MR. MULLANEY: Thank you, Judge. Oh, and how long —
THE COURT: Actually, I'm going to reverse that last ruling. I'm going to grant the request of counsel and as soon as a transcript can be prepared, the time period for any appellate rights may run from the providing of the transcript.
MR. MULLANEY: And I'd ask for . . . given that we've got a holiday coming up, I'd ask for thirty days for me to file the judgment file.
THE COURT: That motion is granted.
MR. MULLANEY: Thank you, Judge.
THE COURT: Does the respondent wish to be heard at all?
MR. EISENMAN: No, Your Honor.
THE COURT: All right. Thank you, counsel.
MR. MULLANEY: Appreciate it, Judge. Thank you.
THE COURT: Thank you. Thank you, Mr. Cator.
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