Opinion
No. CV05-4000393 S
April 2, 2009
MEMORANDUM OF DECISION
The procedural history of the instant matter is lengthy, but recently was aptly summarized by the Appellate Court.
". . . The petitioner was convicted, following a jury trial, of three counts of robbery in the first degree in violation of General Statutes §§ 53a-134(a) and 53a-8, and one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a). The petitioner was sentenced to a total effective term of eighty years incarceration. State v. Harris, 22 Conn.App. 329, 330, 577 A.2d 1077 (1990).
"In the petitioner's direct criminal appeal, he claimed that (1) the trial court improperly permitted the introduction into evidence of a certain statement under the Whelan doctrine and (2) his conviction should be reversed because of prosecutorial impropriety. [The Appellate Court] rejected those claims and affirmed his conviction. See Id., 337.
See State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986).
"In his first petition for a writ of habeas corpus, filed in 1993, in which he was represented by Paula Mangini Montonye, he claimed that Patricia Buck Welt who acted as both his criminal trial and appellate counsel, rendered ineffective assistance. With respect to the trial, the petitioner raised fifteen different claims of ineffectiveness. With respect to the appeal, the petitioner raised two different claims of ineffectiveness. The first habeas court, Hodgson, J., determined that with respect to both sets of claims, the petitioner had failed to establish prejudice. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). [The Appellate Court] court affirmed the judgment. Harris v. Commissioner of Correction, 40 Conn.App. 250, 671 A.2d 359 (1996).
In his first habeas corpus petition, the amended petition filed by attorney Montonye alleged ineffective assistance by trial defense counsel in count one, as well as ineffective assistance by appellate counsel in count two. Count one asserted no less than fifteen specific failures by trial counsel: 1) disclose a potential conflict of interest; 2) challenge the warrant application under Franks v. Delaware, 438 U.S. 154 (1978); 3) object to the prejudicial and inflammatory manner and/or language by the alleged victims in their in-court identification of the petitioner; 4) questioning the alleged victims using terminology prejudicial to the defense; 5) cross examine alleged codefendant; 6) object to hearsay statements; 7) object and/or move to strike certain testimony; 8) restrict testimony and/or evidence pertaining to the petitioner's conviction for escape; 9) request that certain testimony be presented by way of offers of proof and/or voir dire said witnesses; 10) ensure proper chain of custody be established prior to the submission of the tape recording of the alleged co-defendant's statement; 11) object and/or request a curative instruction of erroneous legal information by the state's attorney during his closing argument; 12) trial counsel prejudicially referred to pictures of the petitioner viewed by the alleged victims as "police mug shots;" 13) request charges on lesser included offenses; 14) except to the court's charge on robbery in the first degree, wherein the court failed to instruct the jury on the definition of a "pistol" or "revolver;" and 15) request that the trial court obtain clarification from the jury whether they convicted the petitioner under General Statutes § 53a-70(a)(1) or § 53a-70a. Petitioner's Exhibit 14, pgs. 2-4.
The claims against appellate counsel were more limited. Thus, the petitioner only alleged that appellate counsel failed to raise two claims on appeal: 1) the trial court's error and/or omission in the jury instructions of a definition of a "pistol" or "revolver;" 2) the trial court's error to obtain clarification from the jury whether they convicted the petitioner under General Statutes § 53a-70(a)(1) or § 53a-70a. Id., at pg. 5.
Judge Hodgson dismissed the first habeas corpus petition. As to count one, Judge Hodgson concluded that most of the evidence and briefing focused on whether there had been deficient performance by trial counsel. Accordingly, count one failed because there was no showing of how the petitioner was prejudiced. Judge Hodgson specifically noted that the petitioner had failed to show that the result of the trial somehow was unreliable. The count alleging ineffective assistance by appellate counsel also failed because the petitioner had failed to show how he had been prejudiced by the failure to raise to two omitted claims. Judge Hodgson later filed a supplemental memorandum of decision, filed subsequent to granting the petition for certification to appeal, to additionally address counsel's failure to advise the petitioner to testify on his own behalf. Judge Hodgson noted that she found ". . . completely unbelievable the petitioner's belated attempt to relate his decision not to testify to a failure of his counsel to attempt to limit the evidence concerning the escape." Petitioner's Exhibit 1, at pg. 3.
"In his second petition, filed in 2003, in which he was represented by Salvatore Adamo, the petitioner raised three issues regarding his trial: (1) police misconduct, (2) prosecutorial impropriety and (3) actual innocence. The second habeas court, Hon. William L. Hadden, Jr., judge trial referee, rejected these claims. [The Appellate Court] court dismissed the appeal. Harris v. Commissioner of Correction, 86 Conn.App. 903, 859 A.2d 979 (2004), cert. denied, 272 Conn. 919, 866 A.2d 1286 (2005).
In his second habeas corpus petition, the amended petition filed by attorney Adamo alleged another multitude of claims directed at the underlying conviction and trial. To wit: 1) the petitioner was the victim of prosecutor and police misconduct; 2) the petitioner was illegally arrested because the arrest warrant was fabricated; 3) sentences and paragraphs were altered from the original [warrant] form; 4) witnesses testified untruthfully at trial and admitted to being manipulated by the police department; 5) the petitioner was unjustly charged with sexual assault; 6) the victims were unable to identify the petitioner as being involved in the sexual assaults; 7) the state wrongfully chose to proceed to trial against him knowing that he was not involved in the crime as charged; 8) the evidence of guilt was insufficient since there was no physical evidence connecting the petitioner with the crime; 9) the state knowingly proffered perjured testimony; 10) the state negligently proffered perjured testimony; 11) the state knowingly proffered suborned perjury; 12) the state negligently proffered suborned perjury; and 13) actual innocence and conviction obtained through the negligent introduction of perjured testimony.
The second habeas corpus petition was tried before Judge Trial Referee Hadden. In a very succinct memorandum of decision, Judge Hadden noted that the petitioner was the only witness to present testimonial evidence. Judge Hadden dismissed the petition, as the petitioner had failed to prove his numerous claims. Petitioner Exhibit 32.
"In his third petition, filed in 2004, in which he was represented by his present counsel, the petitioner raised five claims of ineffective assistance of his criminal trial counsel. The respondent, the commissioner of correction, moved to dismiss the petition on the ground that it presented the same grounds as prior petitions. The third habeas court, Fuger, J., dismissed the petition on the ground that it was premised on the same legal grounds and sought the same relief as the first petition, and was supported by facts and allegations reasonably available at the time of the first petition. [The Appellate Court] court dismissed the appeal. Harris v. Commissioner of Correction, 97 Conn.App. 382, 904 A.2d 280, cert. denied, 280 Conn. 928, 909 A.2d 523 (2006).
The reference to present counsel is to attorney David Reich, the special public defender appointed in the third habeas corpus matter. Attorney Reich also was appointed to represent the petitioner in the instant matter, the fourth habeas corpus petition.
In the third habeas, attorney Reich raised the following claims against trial defense counsel: failure to properly prepare the defense case; failure to admit the statement of the alleged victim of the sexual assault that contradicted her testimony and the testimony of other witnesses; failed to effectively cross-examine witnesses in order to show that the petitioner was incorrectly identified; failed to point out in closing arguments the discrepancies in the state's evidence regarding the identification of the petitioner; and failed to object to the admission of prejudicial evidence. Respondent's Exhibit A, at pg. 3.
"Thereafter, the petitioner filed his fourth petition for a writ of habeas corpus . . . In this petition, the petitioner challenged the effectiveness of the representation provided by his habeas counsel during his first and second petitions. In the first count of the petition, the petitioner alleged that his habeas counsel during his first habeas petition, Montonye, failed to investigate and to challenge adequately his trial counsel's presentation at trial of the argument that he was misidentified. In the second count, the petitioner alleged that his habeas counsel during his second habeas petition, Adamo, was ineffective for failing to challenge adequately his trial counsel's presentation of an argument of prosecutorial impropriety and also for failing to provide effective assistance regarding the petitioner's actual innocence claim. The petitioner also realleged that his trial counsel was ineffective for failing to present properly the misidentification issue and the prosecutorial impropriety issue. The respondent, in her return, claimed, inter alia, that the petitioner's various claims had been litigated and decided and were, therefore, barred by the doctrine of res judicata, and that `this is a successive petition and an abuse of the writ. It presents the same grounds as the previous petitions."
"The habeas court, Fuger, J., began the hearing on the petition by asking: `[W]hy shouldn't I dismiss this on the grounds that it's a successive petition . . . and an abuse of the writ?' Counsel answered that he was `alleging . . . ineffective assistance of previous habeas counsel . . .' The respondent asserted that there appeared to be no newly discovered evidence raised in the fourth petition. After listening to argument by counsel, the court ruled on the petition orally, stating that it would dismiss this petition. The court further stated: `I'm going to find it to be successive. I'm going to find it to be an abuse of the writ. Everything I've heard goes back to this trial. This is a crime that's alleged to have occurred — that occurred, I should say, twenty-three years ago. The trial, the original trial was seventeen years ago. Since then, there have been two complete habeas trials, both appealed and denied. I've already dismissed it once as a successive petition.' Thereafter, the court rendered a written judgment of dismissal `on grounds that the claims presented have already been litigated.'"
"The petitioner requested certification to appeal from the judgment of dismissal, which the court denied." Harris v. Commissioner of Correction, 108 Conn.App. 201, 203-05, 947 A.2d 435, cert. denied, 288 Conn. 911 (2008). Ultimately, the Appellate Court concluded that "[t]he petitioner's claims that his prior habeas counsel were ineffective were neither raised nor litigated in any earlier proceedings." Id., at 211. The Appellate Court reversed the habeas court's dismissal and remanded the matter for an evidentiary hearing on the petitioner's petition for a writ of habeas corpus. Id.
Attorney Reich represented the petitioner on appeal from the dismissal of the fourth petition and has continued representing the petitioner since the remand.
The Appellate Court emphasized that "[i]n this fourth petition, [the petitioner] challenges for the first time the effectiveness of his two prior habeas counsel in (1) challenging criminal trial counsel's investigation and presentation of the claim of misidentification, (2) challenging criminal trial counsel's presentation of the claims of prosecutorial improprieties and (3) presenting the claim of actual innocence. Because he challenges the effectiveness of his prior habeas counsel, which also challenges the validity of his underlying conviction, the ground he asserts is different from the previous grounds asserted in his prior habeas petitions, the petition is not barred as successive, and the petition is not barred under the doctrine of res judicata.
"Following our remand, the petitioner will have the burden to prove his claims pursuant to the principles of Strickland v. Washington, supra, 466 U.S. 668. As applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding. Thus, here, the petitioner will have to prove that one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial because of (1) criminal trial counsel's ineffective investigation and presentation of the claim of misidentification or (2) criminal trial counsel's ineffective presentation of the claim of prosecutorial improprieties or (3) actual innocence." Harris v. Commissioner of Correction, supra, 108 Conn.App. 209-10.
The matter was set down for trial after the remand. Shortly before onset of the trial, the respondent filed a motion to quash the subpoenas for the crime victims, Cynthia S. and Deborah G., who previously had been disclosed on the petitioner's witness list. The respondent indicated that "[t]he victims have no testimony to give at this habeas trial that will be of any assistance to the petitioner. The claims in the . . . habeas concern the previous attorneys who represented the petitioner, and not the crime victims. The issue of the identification of the petitioner as one of the perpetrators was explored at trial. A habeas trial is not a retrial of the criminal case." Motion to Quash, at pg. 1.
The motion to quash also stressed that "[t]he incident where [the victims] were sexually assaulted and robbed occurred over 25 years ago. They testified to the best of their ability when the criminal trial occurred in 1989. They have never contacted the State's Attorney's Office in the intervening years to change that testimony. Neither woman has indicated that her memory is better now than it was at the time of trial. Furthermore, after the convictions of the perpetrators, the victims had every reasonable expectation that they would not have to relive their experience . . . The respondent has spoken to counsel for the petitioner, and has not received any concrete indication as to why these ladies are being subpoenaed. Neither victim was given any concrete explanation either." Id., at pg. 1-2. At the conclusion of the motion to quash, "[t]he respondent request[ed] an offer of proof as to why these two crime victims should be subjected to such distress and what, other than harassment, the petitioner expects to gain by subpoenaing the victims over 25 years after the crimes." Id., at pg. 2.
The petitioner's objection to the motion to quash asked that the court deny the motion to quash and made several assertions. According to the objection, the testimony from Cynthia S. and Deborah G. was essential to the petitioner's case. One of the factual allegations in count two asserts that the prosecutor at the criminal trial introduced testimony that he knew or should have known was false. Accordingly, the victims were subpoenaed to testify as to what role, if any, the prosecutor played in their in-court identification of the petitioner. Counsel for the petitioner emphasized that the subpoenas were not intended to harass the victims but to present evidence that cannot be obtained by any other means.
The court addressed the motion to quash and the objection thereto on the first day of trial, December 2, 2008. At that time, counsel for the respondent reiterated her arguments as to why it was unnecessary to require the two victims to appear. Counsel for the respondent referenced General Statutes § 52-161b in support of her arguments of this court's authority to have the petitioner make an offer of proof as to the expected testimony. The petitioner's attorney indicated to the court that he was not intending to harass the victims and that their testimony was necessary to the petitioner's claims. Based on counsel's representations as an officer of the court, the court denied the motion to quash the subpoenas and the trial on the merits proceeded.
General Statutes § 52-161b applies to pro se habeas corpus petitioners. The instant petitioner is represented by a court-appointed special public defender. Thus, § 52-161b does not apply in case. The court nevertheless deems it prudent, especially in view of the fact that underlying offenses occurred about twenty-five years ago, and the ensuing trial transpired about twenty years ago, to require counsel for the petitioner to make an offer of proof that comports with § 52-161b(c). It is clear that § 52-161b(c) seeks to balance victims' rights to be free from potentially intrusive and harassing litigation with a civil litigant's right to present evidence that is relevant and necessary to the claims at issue. This court strove to arrive at a similar balance although petitioner's counsel is an officer of the court.
Because of the victims' traumatization, the court employed, with the petitioner's consent, procedures for the courtroom proceedings to help minimize further trauma resulting from testifying a quarter of a century after the underlying criminal offenses.
Over the course of three days — December 2, 3 and 17, 2008 — the court heard testimony from Deborah G., Cynthia S., Laura Barrows, attorney Paula Mangini Montonye, Senior Assistant State's Attorney James Clark, and the petitioner himself. Additionally, numerous documents were entered into evidence.
The petitioner also offered Dr. Steven Penrod as an expert witness. After conducting a modified Porter hearing, the court concluded that that Dr. Penrod's testimony would not assist the fact finder, was more likely to confuse the fact finder, and was not relevant to the issues this court had to decide. See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998). The court excluded his testimony and the petitioner made an offer of proof for the record.
After reviewing all the evidence and applying the law to the facts, judgment shall enter denying the petition for a writ of habeas corpus.
Facts supporting the underlying criminal convictions
"The jury could have reasonably found the following facts. On May 21, 1983, at approximately 1:45 a.m., the defendant and two other persons robbed a victim (V1) in front of 138 Whalley Avenue, New Haven. The two other perpetrators were Jerome Downing and Charles Myers. During that robbery, one of the three displayed a handgun and subsequently stole car keys and $40 in cash from V1. The three then left in a 1973 Chevrolet Impala, a car that V1 had borrowed from another person.
The individual identified as victim 1 is Barrows' boyfriend, Sergio Maocco.
"Shortly thereafter, two females made a wrong turn onto Hamilton Street, a dead end street in New Haven. As the driver attempted to turn the car around, the vehicle was blocked by a Chevrolet Impala. Downing, armed with a handgun, went to the driver's side of the vehicle, while the defendant and Myers went to the other side of the car. Downing pointed a gun at the victim on the driver's side (V2) and ordered that the doors be unlocked. The doors were unlocked and Downing then grabbed jewelry from V2 while the defendant and Myers grabbed jewelry from the female on the passenger's side (V3). A pocketbook was also stolen. Downing then ordered V2 into the back seat of the vehicle whereupon he sexually assaulted her. Meanwhile, the defendant sexually assaulted V3 in the front seat of the car and Myers waited outside the Impala. Myers, who did not engage in the sexual assaults, then called for his two cohorts. The defendant left the victim's car and he and Myers left the scene in the Chevrolet Impala. Downing remained in the victim's car, jumped to the front seat and drove the car to the `Hill' section of New Haven, where he again sexually assaulted V2. Downing then left the car and took off on foot. Following this incident, V2 and V3 returned to Hamilton Street to retrieve lost items. The police had already been notified and were present when the victims arrived. V2 and V3 were taken to Yale-New Haven Hospital for treatment. Following treatment, they went to the New Haven police department and gave statements. On August 27, 1985, Downing, while under arrest, gave a statement to the police that was tape-recorded and transcribed to writing. In that statement, Downing claimed that the defendant was involved in this incident. The police obtained an arrest warrant and subsequently arrested the defendant.
The individual identified as victim 2 is Deborah G.
The individual identified as victim 3 is Cynthia S.
"During the trial, V1 identified the defendant as one of the three perpetrators of the robbery against him. Both V2 and V3 also identified the defendant as the person who went to the driver's side of the car containing the victims and robbed and sexually assaulted V3 . . . The jury convicted the defendant . . ." State v. Harris, supra, 22 Conn.App. 330-31.
Discussion
The amended petition raises claims in two counts: first, that attorney Wolf rendered ineffective assistance of counsel as trial defense counsel, as well as that attorney Montonye rendered ineffective assistance of counsel as counsel on the petitioner's first habeas corpus petition; and second, again premised on the identical alleged failures by Wolf, ineffective assistance by attorney Adamo as counsel on the petitioner's second habeas corpus petition. The respondent's return either denies the petitioner's material allegations or leaves him to his proof.
Additionally, the return asserts the defense of procedural default and that the doctrine of res judicata prohibits the petitioner from relitigating claims already decided, as well as that this is a successive petition and that the petitioner is abusing the writ of habeas corpus. The petitioner filed a reply to the return denying that he has procedurally defaulted, is abusing the writ of habeas corpus, and that res judicata applies. Given the Appellate Court's remand and the reasons therefore, the court shall not address res judicata and abuse of the writ premised on successive petitions.
"It is well settled that to prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy the two-pronged test set forth 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 (2008)." Washington v. Commissioner of Correction, 287 Conn. 792, 832-33(2008).
Claims in successive habeas petitions alleging one or more prior habeas counsel rendered ineffective assistance of counsel ultimately relate back to, and are derivative of, claims of ineffective assistance by trial counsel. See, e.g., Jarrett v. Commissioner of Correction, 108 Conn.App. 59, 69, 947 A.2d 395, cert. denied, 288 Conn. 910, 953 A.2d 653 (2008), citing and quoting Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13, 786 A.2d 442 (2001) ("To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective . . . Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial. (Citations omitted; internal quotation marks omitted.) cert. denied, 259 Conn. 908, 789 A.2d 994 (2002)." Ultimately, a habeas corpus petitioner can only prevail if the habeas court has been convinced that the outcome of the underlying criminal proceeding has been undermined. That is, "[i]n order to show prejudice, a petitioner must satisfy the trier that, in the absence of inadequate representation, the outcome would, with reasonable probability, have been different . . . A reasonable probability is one which is sufficient to undermine confidence in the result . . ." (Internal citations omitted.) Ruffin v. Commissioner of Correction, 106 Conn.App. 396, 399, 943 A.2d 1105, cert. denied, 286 Conn. 922, 949 A.2d 481 (2008).
Successive habeas petitions can be likened to chain building. With each new petition challenging the immediately preceding counsel's representation, a new link is added on to the existing chain. The first Strickland prong may only require an attack of one or more prior links; the second Strickland prong, however, requires attacking the entire chain back to the first link. The Herculean task of prevailing on multiple successive habeas corpus petitions illustrates the difficult and mighty task of breaking the entire chain and, eventually, allowing a habeas court to conclude that its confidence in the outcome of the underlying criminal proceeding has been sufficiently undermined. The more links that have been added to the chain and the longer it has become, the more Herculean and Sisyphean the task becomes. The ability to keep adding yet another link to the chain potentially enables the never-ending creation of new claims that have never been previously raised and litigated on the merits, for the most recent attorney's representation will not have been challenged in any of the preceding habeas corpus petitions. How "ultimate justice" may so be obtained is highly questionable. Iovieno v. Commissioner of Correction, 242 Conn. 689, 715-18, 699 A.2d 1003 (1997) (en banc) (Callahan, C.J, dissenting) (discussing erosion of the writ of habeas corpus as a summary proceeding, with limited appellate rights, resulting from repeated petitions and ensuing appeals).
Count One
In count one, the petitioner alleges that attorneys Wolf and Montonye, respectively trial and first habeas counsel, rendered deficient performance. The petitioner asserts that Wolf failed to properly investigate and review the file, as well as that she failed to demonstrate through the admission of evidence, cross-examination and argument that the petitioner was misidentified by witnesses. The petitioner's claims against Montonye derive from the allegations against Wolf. Thus, Montonye allegedly failed to: also properly review the file; recognize that Wolf failed to demonstrate to the jury through admission of evidence, cross-examination and argument that the petitioner was misidentified by witnesses; and adequately demonstrate prejudice at the first habeas trial. Wolf did not testify in this matter, although Montonye did testify. Both the focus and crux of count one, whether it is regarding Wolf or Montonye, is the alleged misidentification of the petitioner.
Additional findings of fact
Immediately after the sexual assaults, both Deborah G. and Cynthia S. were unable to provide the police with very detailed descriptions. The police report by Officer Bonilla (Bonilla report) prepared shortly after the sexual assaults indicates that Officer Herring was already on the scene and had started the investigation. The Bonilla report indicates that the victims were in shock and hysterical, and that it was difficult to interview them at that time. Bonilla spoke with Deborah G., who had been driving the vehicle and was approached by the armed male. As set forth in the Bonilla report, ending up in a dead end street, a black male with a gun approached the vehicle, got in the car, after which two other black males got in the vehicle. The three males then robbed the victims of their valuables. The Bonilla report indicates that after Deborah G. and Cynthia S. were robbed of their valuables, the black male with the gun took over the driver's seat and made one of the victims get in the backseat. The armed male drove the car to an area and assaulted one victim in the backseat and the other victim in the front seat. According to the Bonilla report, the armed male sexually assaulted each victim twice. After the second sexual assaults, the armed male turned the car around, turned the radio on, and left the scene on foot. The Bonilla report indicates that Bonilla spoke with a Lawrence Rappaport, who was approached by the victims and told of the sexual assaults. According to Rappaport, the victims had advised him they were robbed by three black males and that one of the males had raped them.
Officer Herring, who arrived prior to Bonilla, also produced a police report (Herring report) after speaking to both Deborah G. and Cynthia S. The Herring report indicates that both victims were very upset and could not give much information at that time. According to the Herring report, after the victims drove down the dead end street, the vehicle was approached by three black males, one of whom was brandishing a long silver revolver. The armed male got into the vehicle after the victims had turned over their personal belongings. The armed male sexually assaulted both victims. The armed male then drove or made Deborah G. drive to another location, where both victims were again sexually assaulted. The armed male then turned the vehicle around and walked away. The Herring report states that: "Det. Bonilla took over investigation + put out broadcast for the sexual assault subject which is described as a black male approx. 5' 7" to 5' 8"; medium complexion, thin build curly eye lashes, wearing possibly a green jacket + a off white ski hat."
On May 21, 1983, Cynthia S. gave a statement to Officer D. Amato (Amato statement). In the Amato statement, Cynthia S. indicated that when she and Deborah G. drove down the dead end street, a car pulled out in front of them. Three black males ran over to their car. One of these three males was carrying a gun and put it up to the driver's window. One of the other two males went to the passenger side, where Cynthia S. was seated. After their belongings were taken, Deborah G. was sexually assaulted in the back seat by the armed male and Cynthia S. was sexually assaulted in the front seat by the male who had approached the passenger side.
This statement is dated May 21, 1983, but was subscribed and sworn to on May 24, 1983.
In the Amato statement, Cynthia S. provides descriptions of the two males who committed the sexual assaults, but not of the third male. Cynthia S. described her attacker as appearing to be in his 20s, wearing a dark jacket, possibly maroon or brown. She described Deborah G.'s attacker as appearing in his 20s, medium build, wearing a green jacket, beige ski hat with a design on it.
After her attacker was finished sexually assaulting her, he got out of the vehicle and returned to the car that the three males had been in. According to the Amato statement, Cynthia S. observed Deborah G. and her attacker standing outside the vehicle on the driver's side. Deborah G. then got back in the vehicle, sitting in the rear seat, and the armed male took the driver's seat. The armed male took the car keys, got out of the vehicle and walked over to the other car to speak with the two other males. The armed male returned, started the engine and drove off. The armed male, according to Cynthia S., struck her several times with his hand to get her to respond to him. He then drove the car to an alleyway, turned the car around and parked. The armed male first sexually assaulted Deborah G. in the back seat, then forced Cynthia S. to perform oral sex on him outside the car, after which he made her get back in the car. The armed male also got back in the car, got behind the wheel, drove the car to another location, stopped the car, turned the radio up real loud, exited the vehicle and left on foot.
Deborah G. also provided a statement to police on May 21, 1983. In her statement to Detective Reynolds (Reynolds statement), Deborah G. indicated that an armed male approached the driver's side window, threatened her, and proceeded to sexually assault her both outside the car and in the back seat. One of the other males sexually assaulted Cynthia S. at the same time. Her assailant then left the car, walked over to the other car to speak with the two males, only to return and take over the car and drive to another location. Upon arriving at the other location, the armed male again forced himself upon her sexually, both outside the car and in the back seat area, before turning the car around, turning on the radio and walking away.
In the Reynolds statement, Deborah G. describes the armed male as being in his early 20s, about 5' 9", 160 lbs., medium complexion, curly eyelashes, oval face, considered good looking, clean shaven, wearing an off-white ski hat with a brown design on the hat, and wearing a maroon and brown leather type jacket and jeans. She was able to describe the two other males as follows: one was shorter, dark skinned, a little chunkier, with a wider nose, and the other might have been tall and thin. When asked whether she thought she would be able to recognize the armed male from a photoboard with twelve photographs of black males, Deborah G. indicated she believed that she could.
Detective Piascyk produced a report dated June 6, 1983 (Piascyk report). In the report Piascyk details efforts to have Deborah G. and Cynthia S. identify males from photoboards. On May 25, 1983, Cynthia S. indicated one of the males on a photoboard strongly resembled one of the three attackers. Both Cynthia S. and Deborah G. stopped at the same picture of another photoboard subject, but neither could make a positive identification. On May 26, 1983, Piascyk again showed photoboards to both Cynthia S. and Deborah G., although neither was able to make positive identifications. Cynthia S. further indicated that at that time, her certainty regarding the individual identified as subject #4 in the lineup had decreased, so that she now was not definite as to the identification.
The Piascyk details investigative efforts stemming from information obtained on May 27, 1983, by Sergeant Gallo and Officer Dattilo of the Street Crime Unit from a known and reliable source of theirs. According to this source, an individual named "Pukie" Myers was one of the individuals involved in the sexual assault. Through further investigation it was discerned that "Pukie" Myers was Charles Myers. On May 30, 1983, a lineup was conducted with seven males; Myers was subject #4 in that lineup. Deborah G. gave a statement to Detective Piascyk after viewing this lineup consisting of seven black males. Deborah. G. was 90% sure that subject #4 — Myers — in that lineup was the armed male who had sexually assaulted and robbed her. She indicated that her identification was based on the subject's eyes, face and shape, his long fingers, curly eye lashes, as well as the similar height, age and skin color. Cynthia S. could only indicate that subjects #2 and #4 were strong look-a-likes, but that #4 was the stronger look-a-like of the two. The police investigation into the matter continued.
On September 22, 1983, Piascyk produced a second report. Piascyk indicates that information from Sergeant Gallo and other members of the Street Crime Unit indicated that an individual named Leroy "Jocko" Harris had participated in the sexual assaults. Piascyk again met with Cynthia S. and Deborah G. to determine whether Harris was either present or involved in the sexual assaults. A photo of Harris was placed in a tray of pictures shown to both victims, although neither was able to identify Harris as one of the persons involved in the sexual assaults. The investigation continued.
On December 16, 1983, Myers gave a lengthy statement to Sergeant Gallo and Officers Maher and Dattilo. Myers was asked about the May 21, 1983 robbery and sexual assaults. Myers described him, Jerome Downing and another male as committing a robbery, but only Downing and that other male as committing the sexual assaults. Myers described the other male as being dark skinned, having a mustache, a little afro, kind of heavy set, and approximately 19 or 20 years old. According to Myers, Downing and the other male approached the vehicle the victims were in, and that Downing put his hand out to stop the vehicle. Myers's statement identifies Downing as the male who approached the driver, Deborah G., the other male as the one who approached the passenger, Cynthia S., while Myers remained in the vehicle that the three of them had been driving in prior to approaching the two women.
Myers described Downing as sexually assaulting the driver, but did not see the other male sexually assaulting the passenger although he saw him inside the vehicle. Myers stated he never saw a gun or other weapon and that to the best of his knowledge, Downing was not armed. Although Myers at one point indicated that he, Downing and the third male left the area together after the sexual assaults, Myers ultimately stated he was unsure whether Downing had left with him and the other male. Myers identified and signed a photograph of Downing, who he had know for about four or five years prior to the incident.
A report produced by Officer Dattilo on December 17, 1983, begins with a summary of the information provided by the informant identifying Myers and the December 16 interview with Myers. The report further indicated that Dattilo and Gallo had spoken with a second known and reliable informant on December 16, 1983. This second informant stated that Myers and Downing were two of the individuals who had been involved in the robbery and sexual assaults.
On December 22, 1983, Officer Maher produced a report summarizing further investigative efforts by the police (Maher report). The Maher report indicated that Maocco and Barrows had been shown three photoboards on December 20. Each photoboard contained pictures of twelve black males. Maocco was unable to identify anyone on the photoboards. Barrow, however, identified subjects #2 and #3 as, respectively, looking like the two individuals she had seen in the nightclub immediately prior to the robbery involving Maocco.
The Maher report further summarized the showing of the three photoboards to Cynthia S. and Deborah G., as well as the victims' repeated effort to describe the three perpetrators. On December 21, 1983, when the investigating officers spoke with Cynthia S., she provided the following descriptions: subject #1 (armed male) — black male, 5' 8" tall, in his twenties, medium build, very curly eye lashes, wearing a beige ski hat with a green design on the hat, wearing a maroon colored jacket; subject #2 (approached passenger side) — curly hair; subject #3 — no description. Cynthia S. identified Myers from the photoboards and stated that he looked like the individual who went to the passenger side door, but that she was not positive. Cynthia S. was not able to identify anyone else from the three photoboards at that time.
Deborah G. was shown the three photoboards on December 22, 1983. She provided the following description at that time: subject #1 (armed male) — black male, medium complexion, in his twenties, 6' 0" tall, clean shaven, curly eye lashes, wearing a white ski hat with brown stitching on the hat; subject #2 (approached passenger side) — black male with a round face, flat nose, big lips, almond shaped eyes, in his late twenties, wearing a ski hat; subject #3 — black male with skinny legs. From the photoboards, Deborah G. identified Myers as the armed male, indicating she was 100% certain, and with 80% certainty identified Downing as the individual who went to the passenger side and accosted Cynthia S.
Petitioner's Exhibit 7. Myers is the individual under the number 2.
On August 27, 1984, Maher and Dattilo traveled to a correctional facility to serve an arrest warrant on Downing in connection with the robbery and sexual assaults. Downing was taken into custody and transported to Connecticut. Upon his return, Downing gave a statement on August 27, 1984, to Dattilo and Maher. In his statement, Downing indicates that one of the other two men — "Jock" — approached the passenger side and proceeded to commit the sexual assault. Downing followed this person's lead and sexually assaulted the other victim. According to Downing, he was left behind by the other two — "Pukie" and "Jock" — and it was he who drove the victims' car to another location and then fled on foot. Downing identified the two other individuals as "Pukie" and "Jock," and he stated that he had known the latter for about six or seven years and could identify him if shown a photograph. Downing identified and signed photographs of Myers and Harris, but emphasized that Myers was only involved in the robbery. According to Downing, the sexual assaults did not involve Myers, only Downing and Harris.
Petitioner's Exhibit 4. A side-by-side comparison of the photos identified by Deborah G. and Downing shows that individual, though clothed differently, appears to be the same.
Petitioner's Exhibit 5.
Officer Dattilo produced a report on August 28, 1984, summarizing the information obtained from the Downing interview (Dattilo report). This report indicates that Dattilo had several photoboards made up that contained a photograph of Leroy "Jock" Harris and eleven other black males. On August 29, 1984, both Cynthia S. and Deborah G. independently viewed the photoboards containing a picture of Harris. However, neither victim was able to make a positive identification at that time. An arrest warrant application pertaining to Harris was prepared by Dattilo for his participation in the robberies and sexual assaults. On September 18, 1984, Harris was transferred from the Bridgeport Correctional Facility to the Superior Court in New Haven, CT, so the arrest warrant could be served.
The petitioner escaped from custody and, after his return to custody, ultimately proceeded to trial in 1989. Deborah G., after being able to observe the petitioner earlier the day she testified, identified the petitioner in court as the individual who came to the passenger's side and sexually assaulted Cynthia S. Deborah G. testified that she was 100% certain in her identification, that there was no uncertainty. Sergio Maocco also made an in-court identification of the petitioner as one of the three individuals who robbed him outside the nightclub. Cynthia S. identified with certainty the petitioner in court as the person who came to the passenger side and then sexually assaulted her. Attorney Wolf on cross-examination questioned all of these witnesses as to the identifications, but was unable to call into question the certainty of the in-court identifications.
Apparently, the petitioner was separately tried in 1986 for the escape. See Petitioner's Exhibit 13, at pgs. 274-75.
Petitioner's Exhibit 13, at pgs. 36-37, and 56.
Petitioner's Exhibit 13, at pg. 60.
Petitioner's Exhibit 13, at pg. 92.
Downing also testified during the criminal trial, testifying that he was the individual who sexually assaulted the driver and that the third individual (i.e., not Myers) sexually assaulted the passenger. Downing could not identify the petitioner as being the other individual who committed a sexual assault, which resulted in his statement given on August 27, 1984 to Dattilo and Maher to be admitted for substantive purposes under the Whelan doctrine. Downing further testified that he had resolved by way of a plea agreement his criminal charges stemming from the same underlying events. On cross-examination by Wolf, Downing again denied knowing the petitioner and testified that the petitioner was not involved in the underlying events.
Petitioner's Exhibit 13, at pg. 124.
The August 27, 1984 statement to Dattilo and Maher became a full exhibit, over Wolf's strenuous objection, during Dattilo's testimony. The admission of the statement in accordance with Whelan was one of the claims raised on direct appeal and affirmed. State v. Harris, 22 Conn.App. 329, 331-34, 330, 577 A.2d 1077 (1990).
Officer Dattilo testified on direct examination about how the investigation evolved as a result of information received from two informants. The first informant provided information to police in May of 1983, shortly after the robbery and sexual assaults. According to Dattilo, a second informant provided information to police in December of 1983. This second informant was identified by Dattilo as being none other than the petitioner, Leroy "Jock" Harris. Dattilo testified that this second informant had been arrested that day (i.e., December 16, 1983) and was questioned by police regarding another incident. The petitioner then provided information to the police regarding the robbery and sexual assaults, implicating Myers and Downing.
Petitioner's Exhibit 13, at pgs. 292-93.
The December 17, 1983 Maher report refers to this second informant as being a "known and reliable informant."
The court notes that a report dated November 27, 2006 from the Connecticut Department of Public Safety lists the petitioner's arrest and conviction dates. While there arrest dates of September 16, 1983, there is no arrest date indicated as December 16, 1983. See Petitioner's Exhibit 48. This court will not speculate, in the absence of any evidence, as to why there is no arrest date of December 16, 1983 on that document.
Turning to this habeas corpus proceeding, Deborah G. testified that she made identifications shortly after the incident. She was unable to recall precisely who she met with at the courthouse prior to trial. Deborah G. testified that no one told her how to testify, that she identified the petitioner during his criminal trial, and that this in-court identification was of the same individual she had previously identified from what is often referred to as a mug shot book. On cross-examination, she testified that her 1989 testimony was based on her recall of the 1983 events and from her own memory. No one, Deborah G. testified, told her what to say. The testimony from Cynthia S. at the habeas proceeding provided nothing of any substance that differed from Deborah G.'s testimony. Cynthia S. responded "No" when asked if anyone, including the prosecuting attorney, told her what to say when she testified in 1989.
Deborah G.'s testimony during the criminal trial is located in Petitioner's Exhibit 13, pgs. 6-58.
Cynthia S.'s testimony during the criminal trial is located in Petitioner's Exhibit 13, pgs. 76-118.
An additional witness who also testified in 1989 criminal trial was Laura Barrows. It was Barrows' boyfriend at the time who was the robbery victim referred to as V1 in the Appellate Court's decision in State v. Harris. See, infra, at pg. 8. Barrows had testified in the criminal trial about the individuals who entered the club and subsequently robbed her boyfriend. Although Barrows recalls the events underlying the criminal trial, she was not able to recall the circumstances of the trial itself. Similar to Deborah G. and Cynthia S., Barrows could not recall talking to the prosecutor at the time of the criminal trial.
Barrow's testimony during the criminal trial is located in Petitioner's Exhibit 13, pgs. 68-75.
Senior Assistant State's Attorney James Clark was the only other participant to the underlying criminal trial who testified during the habeas corpus proceeding. Clark testified that he was not the original prosecutor in this case, but was the prosecutor for the trial and did all trial preparation. According to Clark, he was not involved in the original investigation and does not recall when he took over the case. Clark testified that his trial preparation would encompass reading all available police reports, discussing the case with the lead detectives, and at some point prior to trial speaking to every witness he intended to call at trial. Clark recalled speaking to each of the victims on the day of their respective testimony, although he could not recall if he met them prior to them presenting testimony.
It appears from the underlying record that prosecutor prior to Clark was Assistant State's Attorney Robert J. Devlin, Jr. See, e.g., Petitioner's Exhibits 13, at pg. 360, and 36.
Attorney Montonye testified that she represented the petitioner on his first habeas and on the appeal therefrom, though she only filed the brief on appeal and did not argue the case. Montonye testified that the amended petition she filed included all issues that she would have thought appropriate to raise. Montonye recalled discussing with the petitioner what claims to raise, and described the effort as a collaborative effort between her and the petitioner.
Discussion
This court has very carefully reviewed all the evidence presented in the instant habeas corpus proceeding. The petitioner bears the rather daunting task of proving that Montonye was ineffective for failing to investigate and raise a claim that Wolf was ineffective for failing to investigate and demonstrate through the admission of evidence that the petitioner had been misidentified. Montonye provided no evidence to support such a claim, and there was no testimony presented by Wolf. The petitioner has in no way accomplished the Herculean task he set in motion by way of allegations in his amended petition in this instant habeas corpus, his fourth such attack on the underlying conviction.
The petitioner here has failed to demonstrate that Montonye's performance was deficient and that this deficient performance prejudiced the petitioner's first habeas proceeding. The petitioner has in no way established a reasonable probability that the first habeas court, Judge Hodgson, would have found that he was entitled to reversal of the conviction and a new trial because of Wolf's ineffective investigation and presentation of the claim of misidentification. This court's confidence in the outcome of the criminal trial has not been undermined in any way. The claim in count one, therefore, is denied.
Count Two
In count two, the petitioner alleges Adamo failed to properly pursue and raise a claim of ineffective assistance of counsel against Wolf. The claim in count two asserts that Adamo failed to investigate the case, properly present the case to the court, and effectively demonstrate to the fact finder through the admission of evidence, presentation of witnesses and argument that there was police and prosecutorial misconduct and the actual innocence of the petitioner. These assertions are premised on the factual allegations that "[t]here was some evidence in the transcript of the criminal trial that exculpatory police reports were not given to counsel until late in the trial," as well as that "[t]he police investigation regarding the identity of Mr. Harris was faulty." Amended Petition, at pg. 6.
The petitioner raised a due process claim on his direct appeal premised on the state's alleged failure to disclose a police report. The Appellate Court's decision addressing this claim concluded that the state had, in fact, made the police report available.
"During the trial, Robert Thompson testified that he was the record owner of the Chevrolet Impala that was stolen from V1. He testified that, following the incidents, he searched throughout New Haven for his car and eventually discovered it in the `Hill' section of New Haven. He then testified that he called the police and that they impounded the vehicle overnight and he picked it up the next day. The state called Datillo, and on cross-examination Datillo testified that if the police had recovered a green Impala, then they would have generated a police report. He also testified about police procedure for recovery of stolen cars and cars that have been involved in the commission of a crime. He testified that, although he was not involved in the particular recovery of the Impala, it would have been part of the normal procedure to inspect the vehicle and take fingerprint lifts, if the police were aware that the vehicle has been used in the commission of a crime. He testified that if a vehicle is dusted for fingerprints, a report would be generated."
"At the beginning of the next day in court, the defendant moved to dismiss the charges against him, pursuant to Practice Book 747. He claimed that there were police reports that he should have received that he did not receive, and that the state's attorney should have known that these reports existed on the bases of information in the affidavit to the defendant's arrest warrant and the testimony of the state's witness. The defendant's initial claim was that statements in a police report that he did not receive, but that were referred to by Datillo in his testimony, were used in preparing the affidavit. In the course of his argument, he raised two subjects for which there could have been missing police reports. One concerned possible inconsistent statements that V1 had made to the police as opposed to his testimony. The other was a vague reference to testimony from Thompson that he contacted the police when he discovered his Chevrolet Impala in the Hill section of New Haven following the incidents."
"The court denied the defendant's motion, but permitted him to subpoena the records of the New Haven police for an in camera inspection and granted him a continuance for that purpose."
"At the next court date, the state explained that the subpoenaed documents were delivered and inspected by both parties. These documents collectively were called `Court's Exhibit 2.' The state's attorney indicated that the state and the defendant stipulated that he would read out loud two sentences from a newly discovered police report in which V1 gave an initial description of three robbers that was inconsistent with his testimony."
"The state's attorney then stated, without objection by the defense counsel, that `I think that ends the issue of the motion yesterday concerning discovery.'"
"On appeal, the defendant claims that despite his request and subpoena for a missing police report concerning the recovery of the Impala, no report was given. He argues that the failure to disclose this report violated his constitutional rights as set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and in violation of General Statutes 54-86c. Contrary to the defendant's claim that he received no police report, the state, on appeal, has shown that a police report made by Officer Kevin Boucher, a New Haven police officer, concerning the recovery of the Impala was included in Court's Exhibit 2."
"In that report there is an indication that the car was `towed for processing.' There is no indication in that report, or in this record, that fingerprints were lifted from the vehicle at issue. Further the defendant presented no testimony that at the time the car was recovered, the police were aware that it was used in the commission of a crime. The defendant, therefore, has not established that there was another police report or missing parts of Boucher's report concerning the recovery of this vehicle that should have been disclosed. The defendant's only claim is that he never received a police report concerning the recovery of the Impala. The record shows that he did." State v. Harris, supra, 22 Conn.App. 335-37.
Clark at length testified during the habeas corpus proceeding about the issue that arose in the criminal trial involving the discovery of a police report. Clark testified that predecessor counsel had in 1986 turned over a discovery package to Attorney Rosenthal, a public defender who represented the petitioner prior to Wolf. During the criminal trial, Wolf suggested that the December 22, 1983 police report by Officer Maher had not been provided as part of discovery. According to Clark, the Maher report had been part of the original 1986 discovery package, prior to Clark's involvement in the case. Clark testified that the first time he saw the document was when it was opened in chambers after it was brought in by the New Haven Police Department under subpoena. While there are times that prosecutors do not receive all police reports, Clark testified that he believed that he had all police reports in this case.
The sum and substance of the evidence presented to this court does not support the allegation that Clark or a predecessor counsel failed to provide an "exculpatory" police report. Nor was evidence presented regarding the police investigation that goes beyond what this court has already exhaustively addressed in the context of count one. The petitioner has not proven that Adamo was ineffective in not presenting claims premised on prosecutorial misconduct or actual innocence, the latter claim to which the petitioner presented no evidence that is evenly remotely described as "clear and convincing." See Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997).
There was no evidence that the police, prosecutors, or anyone attempted to suggest or manipulate the testimony of either sexual assault victim. Although each victim was visibly traumatized by testifying and being asked to recall events that took place twenty-five years ago, the victims maintained the testimony presented in 1989 was from their own memory.
Similar to the claim in count one, the petitioner's claim in count two is woefully lacking in substantiation and is denied.
Conclusion
For all the foregoing reasons, judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall submit a judgment file to the clerk within thirty days of the date of this decision.
The court finally notes that this very matter will, of course, open the door to yet another petition that ultimately challenges the entire chain of representation. The petitioner to date has never asserted and litigated a claim against his present habeas attorney. Given how long the petitioner will remain incarcerated, the petitioner has the ability to bring forth "new" claims, although such claims ultimately still somehow must undermine a court's confidence in the outcome of the criminal trial.
Such propagation of litigation can, at least in habeas corpus, continue on ad infinitum. But as former Chief Justice Callahan lamented, the purpose, importance and significance of the Great Writ is eroded thereby and becomes more trivialized with each successive petition. At some point a series of successive petitions becomes per se frivolous. The court finds that the instant matter clearly establishes precisely such a point.
Accordingly, any further attempts by the petitioner to yet again use the writ of habeas corpus to attack his robbery and sexual assault convictions shall be deemed to be an abuse of the writ of habeas corpus.
It is so ordered.