Opinion
CV134005409S
05-12-2016
Ricardo Pereira (Inmate #260677) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Stanley T. Fuger, Jr., Senior Judge.
The petitioner initiated this matter by way of a pro se petition for a writ of habeas corpus, filed on May 2, 2013, and which was amended by assigned counsel on January 21, 2016. The amended petition raises claims in one count, namely that the petitioner's due process rights were violated with respect to his kidnapping conviction, and that the kidnapping statute was invalid and unconstitutional. As relief the petitioner requests that the habeas court vacate his kidnapping conviction and refer that charge back to the criminal trial court for further proceedings according to law. The respondent's return denies the petitioner's claim that he is entitled to habeas corpus relief, as well as asserts that the petitioner has procedurally defaulted and is, therefore, barred from raising this claim. The petitioner filed a reply denying that he has procedurally defaulted.
The matter proceeded to a trial on the merits on February 2, 2016. The parties did not present testimony from any witnesses. Instead, only documents, primarily transcripts, were entered into evidence by stipulation. The parties agreed to submit briefs in lieu of oral arguments. Consequently, because the parties do not disagree on the facts and are making their respective legal arguments, this matter is akin to the parties presenting cross-motions for summary judgment.
For the reasons articulated more fully below, judgment shall enter denying the petition for a writ of habeas corpus.
CRIMINAL CONVICTION AND POST-CONVICTION PROCEEDINGS
In docket number CR97-0000911, judicial district of New Britain, the petitioner was charged with one count of murder in violation of General Statutes § 53a-54a(a) and one count of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A). The petitioner was convicted of both offenses after a jury trial and then appealed from the judgment of conviction. The Appellate Court affirmed the judgment of the trial court. State v. Pereira, 72 Conn.App. 545, 805 A.2d 787 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003).
The Appellate Court's decision summarized the facts as reasonably found by the jury. " At the time of the incident giving rise to his convictions, the [petitioner] was distraught because his former girlfriend had terminated their relationship. The [petitioner] 'still wanted to be with [her, but] she didn't want anything to do with [him].' In the wake of this loss, the [petitioner] spent a great deal of his free time at William MacLellan's small basement apartment in Waterbury. Through MacLellan, the [petitioner] met the victim, Lisa Orgnon, in October 1997. Over the course of approximately one month, the [petitioner] and the victim socialized at drinking establishments in the Waterbury area 'a couple of times.' The victim, MacLellan and the [petitioner] planned to spend the evening of November 18, 1997, together.
" At roughly 9 p.m. on the evening of the incident, the victim, MacLellan, and the [petitioner] walked from MacLellan's apartment to 'Champ's Cafe.' They shared four pitchers of beer, 'did some shots of Goldschlager' and played billiards until the staff closed the establishment for the evening at roughly 11:30 p.m. The three then returned on foot to MacLellan's apartment, where they conversed briefly and decided to go to another drinking establishment, 'MacFairlawn's Tavern, ' before retiring for the evening. The victim agreed to drive them to MacFairlawn's in her white Pontiac Sunbird.
" At MacFairlawn's, MacLellan and the victim continued to play billiards and the [petitioner] ordered another pitcher of Heineken beer and 'stayed at the bar and talked to the bartender.' The three left the bar together at closing time and drove back to MacLellan's apartment. At this point, MacLellan decided to turn in for the evening. The [petitioner] asked the victim to accompany him to a movie theater that he used to frequent near his former girlfriend's Southington home. The [petitioner] 'knew [the theater] was closed' before he suggested the excursion. The victim drove the [petitioner] to the theater at 2 a.m., at which time she learned that the theater was closed while the [petitioner] feigned surprise.
" The [petitioner] then told the victim to 'drive around' and, keeping their destination a secret, directed her to an area of Southington which he knew to be his former girlfriend's neighborhood. He did not inform the victim that his former girlfriend lived in the area. Moments later, they were driving down the [petitioner's] former girlfriend's residential street. As they passed by her house, the [petitioner] reached across the victim's seat and hit her steering wheel as she was trying to drive, blasting the vehicle's horn in order to disturb his ex-girlfriend's household after 2 a.m. The [petitioner] then ordered the victim to stop the vehicle on an adjoining street, Autran Avenue.
" Although the reasons are unclear, the [petitioner] suddenly 'got real mad' at some point after the vehicle halted. In the [petitioner's] own words: 'You know, I just--I just lost control. And I just began, I began to swing at her.' 'I don't know why but I started punching Lisa in her face and head even though she had done nothing wrong. I punched her four or five times.' 'She just tried to get away.' The [petitioner] punched the victim with such force that days later, he had abrasions on his knuckles, which he explained to a nurse were 'from punching.' As the victim attempted to 'get away' from the [petitioner's] unprovoked assault, the [petitioner] grabbed her by the neck and began to strangle her. The [petitioner] choked the victim, crushing her voice box and hemorrhaging the strap muscles in her neck. The [petitioner] strangled the victim with such force that the whites of her eyes turned blood red from petechial hemorrhaging of the capillaries in her conjunctiva. The victim buried her fingernails into the [petitioner]. Forensic analysis later revealed that nine of her ten fingernails had drawn blood in the melee. The [petitioner] sustained scratches on his face and neck, and all over his back and shoulders. Stymied by the victim's effective counter-attack, the [petitioner] lost his grip on the victim's neck. She opened the door and began to spill out, head first, onto the street. The [petitioner] clutched and swiped at her in a futile effort to regain dominance, but the victim kicked at him, checking his renewed assault. The victim broke free and sprinted down the road, away from [petitioner]. The [petitioner] jumped into the driver's seat and gunned the engine, aiming the vehicle at the victim.
" The [petitioner] asserted several explanations for his sudden rage. At trial, he claimed that he was suffering from a sort of displaced rage about his ex-girlfriend that he then misdirected toward the victim. In his written statement, he claimed. 'I don't know what came over me, but I got real mad at myself. I knew that I shouldn't be with Lisa because I still loved Kerry. I don't know why, but I started punching Lisa in her face and head even though she had done nothing wrong.' (Emphasis added.)"
" The [petitioner] slammed the car into the victim. The front bumper shattered her right leg at a point nine inches from her heel. Expert forensic evidence introduced at trial indicated that this was 'a fairly typical pedestrian type [of] injury, where the bumper would strike the lower leg . . .' The vehicle's right front wheel ran over the victim and her body smashed into the undercarriage. The [petitioner] continued to run over the victim and felt the rear transaxle vault over her body. The [petitioner] later stated that he 'wasn't sure' whether he put the car in reverse to run her over again. The street was littered with blood in a long trail resulting from how he, in his own words, 'dragged her up the road.'
" In addition to the injuries from the previous punching and strangling, the vehicle mangled and crushed the victim's body. Evidence introduced at trial established that the victim sustained multiple blunt force trauma to her head and face, including a large and deep L-shaped laceration to her entire right cheek, and another laceration above her right eye. Her nose was scored and abraded, her lips and right forehead were bruised, and the entire left side of her face, from her chin to her ear, was scraped deep purple. Two major lacerations split the back of the victim's head, straight through to her skull. A mass of blood pooled at the back of the victim's head, between her skull and scalp. Inside, a film of blood covered the victim's brain, which had suffered heavy bruising. In addition to the injuries to the victim's neck due to strangulation, the vehicle caused linear abrasions to her neck. The victim suffered extensive blunt force trauma to her chest. Her rib cage was crushed, with fractures at the front and back. Both of her lungs were severely bruised in the process, filling with almost a pint of blood. Lower in the victim's abdomen, her liver was 'essentially torn in half.'
" The [petitioner] then stopped the car, stepped out and approached the victim's body. In his own words, the [petitioner] 'kicked the victim in the head and neck five or six more times' until she 'wasn't moving at all' any more. Finally satisfied that he had killed the victim, the [petitioner] dragged her body out of sight, hiding it in some 'icy brush' over a ridge at the side of the road. The [petitioner] drove the victim's car back to his home town of Waterbury and dumped it in a church parking lot. He walked the rest of the way home.
" The victim, Lisa Orgnon, died in the early morning of November 19, 1997. The medical examiner certified the cause of death to be 'multiple blunt force trauma of the head and chest.' The medical examiner found no sign of any natural cause that would otherwise account for her death.
" It was life as usual for the [petitioner] that day. He awoke at the ordinary time and arrived at the site of his job with his father's construction company. However, after the victim's mother reported the victim missing, the Naugatuck police interrupted the [petitioner's] schedule, asking him for information. The [petitioner] initially denied ever being with the victim in Southington, telling the police that the victim 'drove [him] directly home' after dropping MacLellan at his house. After the body was found, however, the [petitioner] admitted that he had, in fact, killed her." (Footnotes renumbered.) Id., 547-51.
" The Naugatuck, Waterbury and Southington police departments all assisted in the investigation of this homicide."
The court, Espinosa, J., sentenced the petitioner to a total effective sentence of seventy-five years imprisonment. On direct appeal, the petitioner claimed " (1) that the state committed prosecutorial misconduct during cross-examination and in closing argument, (2) that the trial court improperly instructed the jury on the element of intent and the concept of reasonable doubt, (3) that the court improperly denied his motion to suppress his written statement and (4) that the court improperly applied its belief that the [petitioner] had committed perjury as a factor in sentencing." Id., 547. The Appellate Court decided these claims adversely to the petitioner.
After his unsuccessful direct appeal, the petitioner filed a petition for a writ of habeas corpus, which was assigned docket number CV03-0004236-S in the judicial district of Tolland. " In an amended, two count petition for a writ of habeas corpus . . . the petitioner . . . alleged that his conviction[s] . . . should be set aside because the police had failed to honor his constitutional right to counsel. In count one, the petitioner alleged that his trial counsel was ineffective in failing to present testimony from his mother and his sister that, before the initiation of his interrogation by the police, he had asked each of them to find counsel for him. In count two, he alleged that his conviction should be set aside because, in violation of his constitutional rights, he had been deprived of his right to counsel prior to police interrogation. The respondent, the commissioner of correction, denied the allegations in the first count and moved to dismiss the second count because the admissibility of the petitioner's incriminatory statements had been fully litigated at trial. The habeas court, after a hearing, agreed with the respondent on both counts." Pereira v. Commissioner of Correction, 101 Conn.App. 397, 398-99, 921 A.2d 665, cert. denied, 283 Conn. 906, 927 A.2d 918 (2007). The Appellate Court dismissed the appeal. Id., 401.
The petitioner then initiated this second petition for a writ of habeas corpus.
DISCUSSION
The petitioner's claim is relatively narrow and focused, namely that his conviction for kidnapping in the first degree must be vacated because his due process rights were violated and that at the time of his conviction, the kidnapping statute was invalid and unconstitutional. However, State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), and its progeny have never held that the kidnapping statute was invalid and unconstitutional, so that claim has no legal support whatsoever. The court will construe the due process claim, especially in light of the petitioner's reply and brief, as a Salamon based claim that the jury was not properly instructed on the kidnapping offense.
The holding in Salamon is retroactively applicable to claims such as the petitioner's. See Luurtsema v. Commissioner of Correction, 299 Conn. 740, 751, 12 A.3d 817 (2011). Although the respondent has raised procedural default as an affirmative defense, the Supreme Court recently concluded that the Luurtsema " retroactivity decision compels the conclusion that challenges to kidnapping instructions in criminal proceedings rendered final before Salamon are not subject to the procedural default rule." Hinds v. Commissioner of Correction, 321 Conn. 56, 61, A.3d (2016). The petitioner's kidnapping conviction was final no later than 2003, when the Supreme Court denied certification to appeal from the Appellate Court's decision, and which was several years before Salamon . Therefore, the petitioner is not procedurally defaulted from asserting his Salamon claim in this habeas corpus petition.
The court notes that it was the court that rendered judgment in the petitioner's first habeas corpus petition. The first habeas corpus petition was decided in 2005, which also is several years prior to the release of Salamon .
The petitioner argues in his post-trial brief that he is entitled to have his kidnapping conviction vacated because " the facts are such that the allegations of kidnapping are entirely incidental to the murder conviction." Brief, p. 6. The petitioner further argues that the facts in his case clearly show that " this was a continuous assault on the victim . . . [that] it was an ongoing struggle, from the moment that the Petitioner initially hit the victim, it was a continuous act upon the victim." Id. " Because the Petitioner's entire conduct was one continuous activity in the commission of the act of murder; thus, any restraint against the victim was entirely incidental to the murder of the victim. There is simply not one point where it can be said that a jury could clearly determine that the Petitioner was guilty of kidnapping because his intended restraint of the victim was for a longer period of time or a greater extent of commit the murder for which he was convicted. As such, the Petitioner's kidnapping conviction was clearly incidental to the murder and not a separate act." Id., p. 7.
The respondent disagrees with the petitioner's assertion that his kidnapping conviction falls within the ambit of Salamon . The respondent's brief contends that any movement or restraint supporting the kidnapping conviction had independent significance from the murder conviction. The court agrees with the respondent's contention.
" [A] defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case . . ." State v. Salamon, supra, 287 Conn. 547.
It is beyond dispute that the petitioner murdered the victim by running her over at least twice with the vehicle after she was able to flee from the inside of the vehicle. The petitioner did assault the victim in more than one way while she was inside the vehicle: first through multiple punches to her face and head, and thereafter by grabbing her neck and strangling her. The victim attempted to get away from the petitioner after he inflicted the punches. The strangulation clearly was an assault upon the victim, perhaps even an attempt to murder her, but more importantly it also prevented her from escaping both the petitioner's attacks and the vehicle where they were occurring. In other words, the petitioner's restriction of the victim had clearly defined and distinct significance from the subsequent murder. There is, contrary to the petitioner's argument, a point where a reasonable fact finder could clearly determine that the restraint of the victim was not incidental to the murder itself.
The prosecutor in his closing arguments emphasized the petitioner restrained the victim and prevented her from leaving the vehicle. Petitioner's Exhibit 8 (Transcript, March 14, 2000), p. 583-84.
" . . . Connecticut courts ultimately assess the importance of a Salamon instruction by scrutinizing how a reasonable jury would perceive the defendant's restraint of the victim, particularly with respect to when, where, and how the defendant confined or moved the victim." Wilcox v. Commissioner of Correction, 162 Conn.App. 730, 745, 129 A.3d 796 (2016). The petitioner's argument that there was one continuous series of criminal activities in support of his contention that the restraint of the victim was entirely incidental to her murder is a proverbial red herring. The petitioner's argument might hold more sway if he had been charged and convicted of assault and/or attempted murder concomitant with the kidnapping. However, he was charged with murder and kidnapping, two offenses that are so distinct that there is no restraint that occurred that was incidental to the petitioner's acts of committing a murder.
A red herring is derived from the act of dragging a smoked, cooked herring across a trail to confuse dogs, in other words, " something that distracts attention from the real issue."
The murder took place outside the car. The restraint took place inside the car.
The petitioner's Salamon claim, therefore, must be denied because the underlying facts would never have warranted a jury instruction pursuant to Salamon . Even if the petitioner were entitled to have such an instruction being given to the jury, the absence of a Salamon instruction was harmless error. See, e.g., State v. Hampton, 293 Conn. 435, 455-64, 978 A.2d 1089 (2009) (Supreme Court concluded that the lack of a Salamon instruction at trial was harmless error given the particular facts of the case); State v. Nelson, 118 Conn.App. 831, 834-36, 856, 986 A.2d 311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010) (Appellate Court held that the absence of a Salamon instruction was harmless error given facts of the case).
CONCLUSION
Judgment shall enter for the respondent. The petition for a writ of habeas corpus is denied. Counsel for the petitioner shall prepare ajudgment file and file it with the clerk within thirty days of the date of this decision.
It is so ordered.