Opinion
No. TSR CV00 0800827-S
June 29, 2007
MEMORANDUM OF DECISION
Petitioner initiated the instant matter by way of a pro se petition for a writ of habeas corpus filed July 26, 2000 (2000 petition), in the Judicial District of Hartford. On July 3, 2001, petitioner filed another pro se petition for a writ of habeas corpus in the Judicial District of Hartford (2001 petition). The court, Rittenband, J.T.R., consolidated the 2000 and 2001 petitions (consolidated petitions) by order dated July 30, 2001. Attorney Donald O'Brien later was appointed as a special public defender and filed his appearance on February 22, 2002. The matter was transferred on May 24, 2004 from the Judicial District of Hartford to the Judicial District of Tolland.
The consolidated petitions were never amended. The court will, therefore, address the claims as raised in the consolidated petitions. On November 30, 2006, respondent filed a return to the 2000 petition, and, on December 1, 2006, filed a separate return to the 2001 petition. Both returns raise procedural default and res judicata as special defenses. Petitioner did not file a reply to the returns and has not alleged, in accordance with Practice Book § 23-31(c), the cause and prejudice for any alleged procedural default.
The matter came before the court on two days in December 2006 and March 2007 for a trial on the merits. Witnesses included petitioner and Richard Smith. The court finds the testimony of Smith to be highly credible and the testimony of petitioner to be credible in part and not credible in part. The court has reviewed and considered the testimony, the exhibits, the parties' memorandum of law and their closing arguments. After applying the law to the facts, judgment enters denying the petition for a writ of habeas corpus.
Smith is an assistant clerk assigned to the judicial district of Waterbury. Smith testified and introduced documents from the Clerk's file in the matter of State v. Sinchak, Superior Court, judicial district of Waterbury, Docket Number CR92-207969-T.
FINDINGS OF FACT
On or about August 3, 1992, petitioner was the defendant in a criminal case pending in the Superior Court, judicial district of Waterbury, docket number CR92-207969-T in which he was charged with the crimes of murder, in violation of Gen. Stat. § 53a-54a and kidnapping in the first degree, in violation of Gen. Stat. § 53a-92. Thereafter the state filed a substitute long-form information charging petitioner with murder and two counts of kidnapping in the first degree. On or about September 15, 1992, Attorney Michael Graham entered his appearance on petitioner's behalf and represented petitioner throughout the underlying matter. The matter was tried to the jury over a period of two months in March and April 1995 and petitioner was found guilty.
According to the Appellate Court, the jury could have found the following facts: "The charges stem from an incident that occurred on July 27, 1992, at the Freight Street Social Club, an illegal after-hours social club. At the time, Kathleen Gianni worked as a bartender at the social club, which was jointly owned by her close friend, Jo Orlandi, and by Dennis O'Connor. Dennis O'Connor was the president of the Helter Skelter Motorcycle Club, of which the [petitioner] was also a member. Dennis O'Connor's brother, Terrence O'Connor, also a motorcycle club member, worked as a doorman at the social club.
"On July 26, 1992, the motorcycle club held a barbecue fund-raiser to raise bail money for some incarcerated bikers. Both Orlandi and the [petitioner] attended the barbecue. The [petitioner] was accompanied by his girlfriend, Laura Ryan. At approximately 1 a.m. on July 27, 1992, Orlandi, Gianni and another friend opened the social club for business. A number of people visited the club that morning, including the [petitioner], Ryan, Terrence O'Connor and several other motorcycle club members. Also at the club that morning were Michael Lambo and James Palomba.
"The [petitioner] and Ryan remained in the back office when Orlandi began to lock the doors of the club. The [petitioner] walked out from the back office and fired a shot at Gianni, who was standing behind the far end of the bar. The [petitioner] threatened Orlandi and Ryan with the gun, stating that he could not allow any witnesses to the shooting and then fired several more shots at Gianni who lay on the floor behind the bar moaning and gasping. After the [petitioner] fired the final, fatal shot, he grabbed Orlandi and Ryan, placed the gun to their heads and announced that the three of them were going to leave the club and stay together until the whole incident was straightened out.
"The three then went from the club to the Torrington residence of Lisa Fruin, the mother of the [petitioner's] infant son. Once at Fruin's residence, the [petitioner] disassembled the gun and ordered Fruin to dispose of the gun parts in a nearby dumpster. The [petitioner] disposed of the clothes that he had been wearing when he shot Gianni. The [petitioner] forced Ryan and Orlandi to remain with him and tied a bell to Orlandi's ankle while she slept so that he could hear if she attempted to escape.
"Around noon the next day, the [petitioner] allowed Orlandi to leave, but ordered Ryan to stay with her for at least twenty-four hours. Orlandi returned home with Ryan and they remained there until approximately 4 p.m. the next day. At that time Ryan left Orlandi's home with Dave Martorelli, another motorcycle club member. That night, the [petitioner] and Martorelli disposed of Gianni's body and attempted to burn down the club.
"For the next several days, Orlandi denied any knowledge of Gianni's disappearance. On July 29, 1992, Orlandi opened the club at the request of the police, where evidence of the attempted arson and signs of the violence were discovered. The next day, Orlandi fled to Long Island, but ultimately returned to Connecticut and gave several statements to the police detailing the murder." State v. Sinchak, 47 Conn.App. 134, 136-38 (1997), cert. granted, 243 Conn. 964-65 (1998), appeal dismissed, 247 Conn. 440 (1999) (certification improvidently granted).
Petitioner raised five claims on appeal: "(1) the evidence was insufficient to sustain his conviction of kidnapping in the first degree, (2) his state and federal constitutional rights to a fair probable cause hearing and to a fair trial were violated by the state's failure to disclose certain allegedly exculpatory evidence until after the state had rested its case-in-chief, (3) the trial court improperly failed to give the jury his requested instruction regarding the motivation of the state's eyewitnesses, (4) the trial court improperly admitted into evidence certain color slides of the victim's autopsy, and (5) the misconduct of the state's attorney throughout the trial deprived him of a fair trial." State v. Sinchak, 47 Conn.App. 134, 136 (1997), cert. granted, 243 Conn. 964-65 (1998), appeal dismissed, 247 Conn. 440 (1999) (certification improvidently granted). Petitioner did not prevail on any of these claims.
Additional facts will be discussed as necessary.
DISCUSSION
Petitioner's consolidated petitions raise several claims. Central to nearly all these claims are factual allegations petitioner makes regarding the state's failure to disclose exculpatory evidence. For example, petitioner makes several claims premised on the state's alleged failure to disclose the exculpatory evidence contained in the statements of Michael Lambo and James Polomba (exculpatory statements). The state's failure to disclose the exculpatory statements prior to the hearing in probable cause, according to petitioner, interfered with his right to effective assistance of counsel because Graham was precluded from adequately cross-examining and confronting the state's witnesses. Separate allegations directed at Graham claim that he failed to properly conduct a pre-trial investigation; to file motions for discovery prior to the probable cause hearing and prior to the criminal trial; to request a mistrial and/or seek dismissal of the charges subsequent to the disclosure of the exculpatory statements; to follow up on witness leads contained in the exculpatory statements; and to recall state's witnesses and confront them with information obtained from the exculpatory statements.
Another allegation by petitioner is that Graham was ineffective because he failed to timely file post-trial motions. Petitioner goes on to allege that Graham did not make a statement on petitioner's behalf during the sentencing because Graham, after the denial of his untimely post-trial motions, allowed his emotions to interfere with the proceeding. Lastly, petitioner avers that he was unfairly punished, in violation of his due process rights, for exercising his right to a jury trial instead of resolving the matter via a plea agreement. This last claim focuses on the difference between a plea agreement not accepted by petitioner, which would have resulted in a 30-year sentence, and the state's request that petitioner receive a 110-year sentence after conviction by the jury.
A. PROCEDURAL DEFAULT
As previously indicated, respondent has raised the affirmative defense of procedural default. Respondent claims petitioner has procedurally defaulted regarding the claim that the exculpatory statements were not disclosed prior to the 1992 probable cause hearing. Respondent also raises procedural default as to petitioner's claim that he is being unfairly punished, in violation of his due process rights, for exercising his right to a jury trial instead resolving the matter via a plea agreement. According to respondent, petitioner cannot show the required cause and prejudice necessary to overcome the procedural default.
It is respondent's burden to properly plead procedural default, and a failure to raise that affirmative defense relieves a petitioner, whether or not procedural default applies, from alleging and showing the cause and prejudice for the procedural default. Mejia v. Commissioner of Correction, 98 Conn.App. 180, 196 (2006). See also Milner v. Commissioner of Correction, 63 Conn.App. 726, 734 (2001). Once respondent raises procedural default as a defense to a petitioner's claims, however, the burden shifts to petitioner to allege and then show the cause and prejudice.
Practice Book § 23-31 states in relevant part: "(a) If the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition, the petitioner shall file a reply . . . (c) The reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default. The reply shall not restate the claims of the petition." (Emphasis added.) Cf. Gray v. Commissioner of Correction, 84 Conn.App. 515, 518, cert. denied, 271 Conn. 930 (2004).
"Connecticut law is clear that a petitioner who raises a constitutional claim for the first time in a habeas corpus proceeding must show (1) good cause for the procedural default, i.e., the reason for failing to raise the claim at trial or on direct appeal, and (2) prejudice from the alleged constitutional violation. See Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001). When a petitioner fails to make that required showing, a court will not reach the merits of his claim. Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d. 1214 (1991)." Solman v. Commissioner of Correction, 99 Conn.App. 640, 644, cert. denied, 282 Conn. 901 (2007).
Respondent's return to the 2000 petition raises procedural default only as to paragraph #2 of 2000 petition. A review of that paragraph shows that petitioner makes factual allegations about the exculpatory statements. Paragraph #2 does not, however, make any factual claims directed against trial counsel. Instead, paragraph #2 simply is a factual predicate to petitioner's allegations in subsequent paragraphs that Graham rendered ineffective assistance of counsel. The court finds that the defense of procedural default is inapplicable to paragraph #2 of the 2000 petition. See, e.g., Fernandez v. Commissioner of Correction, 96 Conn.App. 251, 255 n. 3, cert. denied, 280 Conn. 908 (2006); Taylor v. Commissioner of Correction, 94 Conn.App. 772, 775 n. 3 (2006), cert. granted, 280 Conn. 926 (2006).
Respondent's return to the 2001 petition additionally raises procedural default to the claims raised in the 2001 petition. According to respondent, petitioner did not raise the 2001 petition claims in a motion to correct an illegal sentence pursuant to Practice Book § 43-22 and has procedurally defaulted. Petitioner's claim in the 2001 petition is brought as a due process claim. Specifically, that petitioner was unfairly punished for exercising his right to a jury trial instead of resolving the matter via a plea agreement. This claim focuses on the sentence petitioner could have received by way of plea agreement (30 years) versus the sentence he received after the jury convicted petitioner (110 years).
"Practice Book § 43-22, which provides the trial court with . . . authority [to take action affecting a sentence subsequent to sentencing], provides that `[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.' An `illegal sentence' is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory . . ." (Internal citation and quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 38 (2001). See also State v. Lawrence, 281 Conn. 147 (2007).
Petitioner does not allege that his sentences exceed the statutory maximums, violate his right against double jeopardy, somehow are ambiguous, or are internally contradictory.
In Lawrence, the Supreme Court recently reviewed the cases addressing § 43-22 claims alleging an illegal sentence. "Reading these cases together, it is clear that a challenge to the legality of a sentence focuses not on what transpired during the trial or on the underlying conviction. In order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, CT Page 11829 the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack . . . [Lawrence's] claim, by its very nature, presuppose[d] an invalid conviction. The defendant d[id] not claim, nor could he, that the sentence he received exceeded the maximum statutory limits prescribed for the crime for which he was convicted; rather, he claim[ed] that he should have been convicted of a crime that has a lesser maximum statutory limit. He also d[id] not claim that he was denied due process at his sentencing hearing or that his sentence [wa]s ambiguous or internally contradictory. See Cobham v. Commissioner of Correction, supra, 258 Conn. 38. If the defendant's claim were to fall into any of those categories, § 43-22 would be the proper vehicle by which he could invoke the trial court's jurisdiction. Because the defendant's claim falls outside that set of narrow circumstances in which the court retains jurisdiction over a defendant once that defendant has been transferred into the custody of the commissioner of correction to begin serving his sentence, the court lacks jurisdiction to consider the claim pursuant to a motion to correct an illegal sentence under § 43-22." (Emphasis added.) State v. Lawrence, supra, 281 Conn. 158-59.
State v. Lawrence, 281 Conn. 147, 155-58, 913 A.2d 428 (2007).
A careful reading of Lawrence and State v. McNellis, 15 Conn.App. 416, 445-50, cert. denied, 209 Conn. 809 (1988), which was heavily relied upon by the Lawrence court, shows that illegal sentence claims can also encompass allegations that due process violations during a sentencing hearing resulted in a sentence being imposed in an illegal manner. Citing and quoting McNellis, the Supreme Court indicated that ". . . the meaning of sentences imposed in an illegal manner [were defined by McNellis] as being within the relevant statutory limits but . . . imposed in a way which violates the defendant's right . . . to be addressed personally at sentencing and to speak in mitigation of punishment . . . or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises . . ." State v. Lawrence, supra, 281 Conn. 156 n. 5.
Petitioner claims that at the time of sentencing, the state's attorney misrepresented certain facts to the trial court by informing the court that the state had never offered petitioner a sentence of thirty years. Additional facts are necessary for a proper resolution of this claim. On January 24, 1995, the criminal case was judicially pretried before Judge Kulawiz. The parties then went on the record to memorialize the offer and petitioner's rejection thereof. The transcript of January 24 indicates that the state's attorney stated: "For the record, I would indicate the plea was to one count of murder. If the defendant were to plead today, it's my understanding state was going to sentence him to thirty years incarceration." Criminal Trial Transcript, January 24, 1995, p. 2.
At the sentencing hearing following petitioner's conviction, the state requested that the court impose a 110-year sentence. Petitioner submitted a five-page statement which read in part ". . . I would suggest any request by the government of a sentence over thirty (30) years would go beyond what the governments (sic) own position (as punitive) was, just a few short months ago. Therefore (such a request) would not be punitive to the charges, but (in effect) punitive for exercising my constitutionally protected right to a fair trial." In rebuttal, the state's attorney averred: "[T]he last paragraph [of the defendant's letter to the court] . . . refers to a plea agreement which was offered to him by the state and that agreement never occurred. It was never offered by the state. That particular amount which is stated was offered by one of the courts that was involved in plea agreement negotiations and it is my belief that that is a matter that should not be considered by the sentencing court who'll make [its] determination on the facts and the evidence that were presented [at trial] and not [based] on the interest in moving cases prior to their trial." Criminal Trial Transcript, July 20, 1995, p. 31-32. Ultimately, the trial court, Murray, J., imposed a total effective sentence of 96 years.
Judge Murray's comments at sentencing warrant repetition. "All right, I've read your statement and I understand what you say. I'll rely upon the body of evidence that I received and that the jury has deemed credible in terms of rendering these verdicts here against you." Criminal Trial Transcript, July 20, 1995, p. 32. ". . . [I]t becomes my awesome duty to impose sentence here in the case involving the rendition of verdicts of murder and kidnapping against you — kidnapping in the first degree. The evidence presented during this trial, Mr. Sinchak, persuaded the jury to find you guilty of murder — [of] the murder of Kathleen Gianni and also kidnapping — guilty of kidnapping in the first degree of Jo Orlandi and Laura Ryan. This court after having heard all the evidence presented is of the opinion that the killing of Kathleen Gianni by you was a premeditated, heartless and cold-blooded murder. Also, the kidnapping of Jo Orlandi and Laura Ryan at gunpoint [put] each of those two women in real and substantial fear of losing their own lives and, of course, denied them the opportunity to come to the aid of the victim, Kathleen Gianni. The body of evidence received by the court during this trial, the presentence investigation reports submitted by the probation officer and your past record of convictions reveals you, Mr. Sinchak, to this court to be a man given to violence to solve your problems with others, with little respect of the lives of other human beings. Based on what has been presented to me at this time, this body of evidence, I am reluctant but persuaded to say that you should never again be a free man." Id., at pp. 33-34. In imposing sentence, the trial court made no reference to the pretrial offer, but cited the heinousness of the crimes, petitioner's personal history and his prior record. At the habeas trial no evidence was adduced that the state's attorney's misconduct, if any, caused the trial court to impose a lengthier sentence.
Petitioner availed himself of his right to sentence review. In a decision filed November 23, 2004, the Sentence Review Division, Iannotti, J., Miano, J., and Holden, J., affirmed the 96-year sentence imposed and concluded it was neither inappropriate nor disproportionate. Respondent's Exhibit PP, at p. 6. The panel noted that "The sentencing court presided over all the testimony in this case. The court addressed that testimony at the sentencing hearing . . ." Id., at p. 5 ". . . The sentencing court was privy to the detailed, explicit testimony of a gangland execution. All the facts surrounding circumstances leading up to this offense were carefully considered by the sentencing court. Moreover, the sentencing court was well aware the petitioner's criminal history dated back to 1973 and was replete with crimes of violence. The court had no doubt Mr. Sinchak would never conform his behavior and sentenced him accordingly." Id., at p. 6. The panel at one point refers to the crimes as "heinous" and "chilling." Id., at p. 4.
Based upon the foregoing, the court concludes that petitioner for the first time is raising in the 2001 habeas corpus petition a constitutional claim that should have been brought before the sentencing court or on direct appeal. State v. Lawrence, supra, 281 Conn. 156 n. 5; Cobham v. Commissioner of Correction, supra, 258 Conn. 38; State v. McNellis, supra, 15 Conn.App. 444. Petitioner has neither alleged nor affirmatively shown the required cause and prejudice to overcome the procedural default. Even assuming petitioner had made these required showings, which he has not, it is patently evident from the evidence before this court that there is no merit whatsoever to petitioner's claim that his due process rights were violated because he took the case to trial instead of resolving the matter via plea agreement.
B. RES JUDICATA
Respondent's other special defense is that the doctrine of res judicata prevents petitioner from litigating the claims arising from, and related to, the exculpatory statements. Respondent argues that the claims pertaining to the exculpatory statements were fully addressed by the Appellate Court in petitioner's direct appeal. Respondent also asks this court to conclude that res judicata precludes petitioner from again litigating a claim, as he did before the Sentence Review Division, that the sentence imposed is significantly longer than the state's pre-trial offer.
The court's decision in Part A of this opinion is dispositive of the claims presented in the 2001 petition. Thus the court need not reach this issue.
As to the 2000 petition claims premised on the exculpatory statements, petitioner's second claim on his direct appeal was ". . . that he is entitled to a new probable cause hearing because the state's failure to disclose statements given to the police by Lambo and Palomba, who were at the social club on July 27, 1992, deprived him of due process of law and of a fair and valid probable cause hearing. [Petitioner] further assert[ed] that the state's nondisclosure deprived him of his right to a fair trial. After the state had rested and during the defendant's case, the state revealed to the defendant that the Waterbury police had taken written statements from Lambo and Palomba. The court ordered the immediate disclosure of the statements. The defendant claimed that the statements contained exculpatory evidence because, taken together, the statements contradicted the testimony of the state's eyewitnesses by implicating Terrence O'Connor as the shooter. After reviewing the materials, the court held that the statements, taken together, contained exculpatory evidence and should have been disclosed to the defense . . ." State v. Sinchak, supra, 47 Conn.App. 139-40.
After reviewing the case law controlling petitioner's claim, the Appellate Court concluded that it ". . . need not analyze whether the state's nondisclosure at the probable cause hearing violated Brady [v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed2d 215 (1963)]. Even assuming, arguendo, that the state did improperly suppress exculpatory evidence at the probable cause hearing, [the Appellate Court] nonetheless conclude[d] that the nondisclosure did not taint the subsequent prosecution and deprive the defendant of a fair trial. Evidence known to the defendant or his counsel, or that is disclosed, even if during trial, is not considered suppressed as that term is used in Brady . . . Here, the statements of Lambo and Palomba were disclosed to the defendant during trial. The defendant, therefore, can complain of the timing of the disclosure but has no basis for a claim of suppression . . . When exculpatory evidence is disclosed for the first time at trial, the appropriate standard to be applied is whether the disclosure came so late as to prevent the defendant from receiving a fair trial . . ." (Internal citations and quotation marks omitted.) State v. Sinchak, supra, 47 Conn.App. 141-42.
"No denial of due process occurs if the exculpatory material is disclosed in time for its effective use at trial . . . Under these circumstances, the defendant bears the burden of proving that he was prejudiced by the state's late disclosure . . . Here, [petitioner] . . . failed to meet his burden. Both Lambo and Palomba testified at trial for the defense regarding the content of their prior statements to the Waterbury police. [Petitioner] had every opportunity to draw attention to any inconsistencies between the statements of Lambo and Palomba and the testimony of the state's key witnesses. Furthermore, if [petitioner] wanted to use the statements to impeach the state's witnesses, he could have moved to recall the witnesses or requested a continuance to conduct further investigation and preparation . . . [Petitioner] did neither of those two things. [The Appellate Court] conclude[d] that [petitioner] . . . failed to demonstrate resulting prejudice due to the state's failure to disclose the statements at an earlier time, and, accordingly, the state's late disclosure cannot furnish a basis for the reversal of his conviction." (Internal citations and quotation marks omitted.) Id., at 142-43.
In a footnote, the Appellate went so far as to note that "Upon close examination of the statements of Lambo and Palomba, [it] conclude[d] that the statements would have had very limited impeachment value." Id., at 142 n. 3.
"The doctrine of res judicata, or claim preclusion, provides that a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action between the same parties on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it." Bridges v. Commissioner of Correction, 97 Conn.App. 119, 122, cert. denied, 280 Conn. 921 (2006); Brown v. Commissioner of Correction, 44 Conn.App. 746, 749 (1997).
"Our Supreme Court has adopted a transactional test as a guide to determining whether an action involves the same claim as an earlier action so as to trigger operation of the doctrine of res judicata . . . We compare the complaint in the second action with the pleadings and the judgment in the earlier action . . . The judicial doctrine of res judicata . . . is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate . . . Where a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding . . ." (Citations omitted.) Brown v. Commissioner of Correction, supra, 44 Conn.App. 749.
Petitioner's claims in the 2000 petition, though premised on the exculpatory statements, are claims of ineffective assistance of counsel by Graham. Petitioner has not previously raised such a claim and, therefore, cannot be barred from litigating the claim based on the doctrine of res judicata.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
"In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of the conviction . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . Unless a petitioner makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable . . .
"The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness . . . In CT Page 11834 Strickland, the United States Supreme Court held that judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a petitioner to second guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . .
"The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some effect on the outcome of the proceeding . . . Rather, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a petitioner challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt . . .
"Because both prongs of Strickland must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong . . . Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim . . ." (Internal citations omitted.) Crocker v. Commissioner of Correction, 101 Conn.App. 133, 136-37 (2007).
Petitioner first claims that prior to the hearing in probable cause, the state withheld disclosure of exculpatory evidence and Graham failed to file a motion for discovery of exculpatory evidence. This claim concerns the failure to disclose or discover Lambo's and Palomba's written statements. Documents entered into evidence from the Clerk's file show that on August 3, 1992, the court issued a search and seizure warrant authorizing the search of the Freight Street social club in Waterbury. The affidavit in support of the warrant sets out facts showing probable cause to believe that a murder had been committed therein. Paragraphs 9 and 10 of the affidavit set out a summary of the contents of the written statements given to Waterbury police by Lambo and Palomba including the exculpatory information that the victim was alive at 5:00 a.m. and that all Helter Skelter club members, except Terrence O'Connor, left the after hours club before Lambo and Palomba.
On September 15, 1992, Graham received a copy of the search warrant and the hearing in probable cause was held eight days later. Thus although Graham did not have copies of the complete written statements of Lambo and Palomba in advance of the hearing in probable cause, he was provided a summary of the exculpatory evidence contained in their statements. Accordingly petitioner has failed to prove that the state withheld Lambo's and Palomba's exculpatory evidence prior to the hearing in probable cause or that Graham was deficient in failing to obtain this information in advance of the hearing.
Petitioner next claims that Graham failed to file a motion for discovery in 1995, that he failed to conduct an adequate investigation and that he failed to confront Orlandi and Ryan with the exculpatory statements. Graham filed pretrial motions for discovery and production on January 10, 1995, February 23, 1995 and April 3, 1995. Nevertheless not until the twelfth day of trial, April 6, 1995, did the state deliver to Graham copies of Lambo's and Palomba's written statements. The transcript of the proceedings of April 6 shows Graham represented to the court that although he had just received full copies of the exculpatory statements, he did not desire a continuance, but instead requested the court review in camera the entire state's file and turn over any other exculpatory evidence to him.
The evidence portion of the trial concluded on April 18, 1995.
The court granted Graham's request and ordered the state to provide the court with the state's file. After reviewing the file, the court decided it was unable to determine what was exculpatory and accordingly on April 7, 1995, turned over the entire file to Graham.
Upon receiving the exculpatory statements on April 6, 1995, Graham dispatched his investigator to locate Lambo and Palomba. Graham's investigator was successful in locating Lambo and on April 11, 1995, Lambo testified for the defense. In his testimony Lambo indicated that on July 27, 1992, at approximately 1:30 a.m., he, Palomba and their friend Diane arrived at the Freight Street Social Club. At that time the only other persons present were the victim, Orlandi and an individual named Paul. Lambo started drinking beer and shots of liquor and began to play pool. Sometime thereafter, Terrence O'Connor and three members of the Helter Skelter motorcycle club entered the social club. Fearing for his safety, Lambo avoided looking at the Helter Skelter members, but observed that O'Connor entered and left a back office on two occasions and that Orlandi also went into the back office. According to Lambo, he, Palomba and Diane stayed at the social club until its closing at 5:00 a.m. and when their party left, the only persons who remained in the club were the victim, Orlandi and Paul. Lambo further testified that several of the Helter Skelter members left before he did, but that he never saw O'Connor leave and does not know whether O'Connor left or remained in the backroom. On cross examination, Lambo testified that during the evening of July 26 and the morning of July 27, he drank as many as fifteen beers and five shots of liquor and played eight or more games of pool. He also indicated that while he was at the social club, he was preoccupied with his games of pool and often had his back facing the rest of the bar. He reiterated his direct testimony that he intentionally tried not to look at any other persons and that he did not pay attention to the comings and goings of the other persons in the bar. He further testified that although he saw O'Connor enter the back office, he had no idea whether O'Connor remained on the premises after Lambo, Palomba and Diane left. Lambo also reiterated that when he left, the only persons he saw in the club were the victim, Orlandi and Paul. When asked to identify the defendant in court, Lambo was unable to do so.
Palomba testified for the defense on April 18, 1995 and indicated that he, Lambo and Diane went to the Freight Street Social Club to drink. Palomba, Lambo and Diane were the first to arrive at the club and when they arrived only the victim and Orlandi were there. Palomba proceeded to play three games of pool and then sat at the bar and talked with the victim. Thereafter four Helter Skelter members and several women arrived at the social club and one member of this group went into the back office. Sometime later three of the Helter Skelter members, including petitioner, and the women left the club. Palomba, however, never saw the person from the back office leave. Palomba and his group left the club thirty minutes later at approximately 5:00 a.m. On cross examination, Palomba testified that he drank as many as five beers and one shot that night. Palomba further conceded that there were as many as thirteen people in the club at any one time and that, like Lambo, he intentionally avoided looking at other people. Palomba also testified that as he was leaving the club, he saw movement in the back office which indicated to him that there were people present there.
Unlike Lambo, Palomba was not familiar with Terrence O'Connor and thus could not identify him by name. Moreover, Palomba was unable to pick O'Connor's photo out of a Waterbury police photo array.
Orlandi and Ryan testified in the state's case-in-chief and were extensively cross examined by Graham. Petitioner now claims that Graham should also have called Orlandi and Ryan in the defense case to confront them with the discrepancies between their testimony and that of Lambo and Palomba. Petitioner points to the fact that Orlandi and Ryan claim the shooting took place at 3:30 am, while Lambo and Palomba claim they did not leave the club until 5:00 a.m. Additionally Orlandi and Ryan claim that only they, petitioner and the victim were present when the club closed while Palomba testified that petitioner was one of the three who left approximately thirty minutes before Palomba did and Lambo testified that all of the Helter Skelter members left before he did.
The discrepancies between the testimony of the state's witnesses and the defense's witnesses were before the jury by virtue of the direct testimony of Lambo and Palomba. Whether to recall Orlandi and Ryan to directly confront them with these discrepancies was a matter of trial strategy to which this court must give great deference. Orlandi and Ryan were not just witnesses, they were also victims who had been terrorized by petitioner during their kidnapping. Graham may well have decided returning Orlandi and Ryan to the stand in the defense case ran the risk of engendering additional sympathy for them or additional antipathy toward petitioner with little or no added benefit to the defense. In closing argument Graham severely attacked the credibility of Orlandi and Ryan and highlighted the discrepancies between Lambo's and Palomba's testimony and that of Orlandi and Ryan. Graham's performance therefore was not deficient. Moreover petitioner has failed to prove the prejudice prong.
See footnote 8.
Petitioner next claims that Graham should have hired a forensic expert and should have pursued investigative leads based on Lambo's and Palomba's written statements. At the habeas trial petitioner testified that at various points in time, Graham had three investigators working on petitioner's case. Petitioner met with at least one of these investigators and provided names and leads to be pursued. Petitioner testified that Graham and his investigators attempted to speak to Orlandi and Ryan but they refused to talk to them. Petitioner also testified that Graham and his investigators located Fruin and spoke to her. Graham did not testify at the habeas trial, nor was Graham's trial file introduced into evidence. Further none of Graham's investigators testified at the habeas trial. In the absence of this evidence, the court is unable to conclude that Graham did not hire a forensic expert or that Graham failed to pursue the leads set out in Lambo's and Palomba's statements. Additionally petitioner has failed to prove what evidence additional investigation would have unearthed. "The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." Holley v. Commissioner of Correction, 62 Conn.App. 170, 175 (2001). "Mere conjecture and speculation are not enough to support a showing of prejudice." (Citation omitted.) Burke v. Commissioner of Correction, 90 Conn.App. 370, 378, cert. denied, 275 Conn. 926 (2005).
The observations of Diane (last name unknown), Lou "the taxi driver" and Terrence O'Connor.
Graham died in May 1998.
One of Graham's investigators was subpoenaed to testify, but failed to appear for the trial.
Petitioner next claims that Graham was ineffective for failing to move for a mistrial or dismissal of the charges due to the state's untimely disclosure of Lambo's and Palomba's complete statements. "While the remedy of a mistrial is permitted under the rules of practice, it is not favored . . . If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided . . . The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been denied the opportunity for a fair trial." (Internal quotation marks omitted.) State v. Sewell, 95 Conn.App. 815, 821, cert. denied, 280 Conn. 905 (2006). Here, a mistrial would not have been granted because a less extreme remedy existed, namely granting the defense a continuance to locate Lambo and Palomba and investigate their version of the events of July 27, 1992. Additionally, petitioner was not prejudiced by the state's untimely disclosure in that both Lambo and Palomba testified for the defense and Graham was able to get their exculpatory evidence in front of the jury. It is highly unlikely therefore that even if Graham had moved for a mistrial, such a motion would have been granted. Accordingly petitioner has failed to show Graham's performance was deficient or that he was prejudiced.
Next petitioner claims that Graham failed to timely file certain post-trial motions. On April 21, 1995, the jury returned its verdict and the trial court ordered the petitioner to submit any post-trial motions by May 12, 1995. On May 8 and May 9, Graham filed motions for judgment of acquittal. Thereafter on July 20, 1995, Graham filed a motion entitled "supplement to motion for judgment of acquittal" which set forth claims of prosecutorial misconduct during the trial. The transcript of July 20 shows that during oral argument, Graham claimed this last motion was in fact a motion for a new trial. The court orally denied the motion as untimely and on August 2, 1995, filed a written memorandum of its decision. In its written decision, the court reaffirmed its denial of the motion as untimely but in a footnote concluded that the claims set out in the motion were not, in any event, proper grounds for a new trial. Petitioner has thus failed to prove that he was prejudiced by the untimely filing of the supplemental motion for acquittal.
"THE COURT: . . . In the jury trial matter, Mr. Graham, you filed a motion, dated May 3, 1995; for judgment of acquittal and motion in arrest of judgment and I'll hear you.
"MR. GRAHAM: Correct. And I supplemented that this morning with an additional motion. It's filed in the same fashion but, in fact, it probably should be called a motion for a new trial to properly preserve the practice book provisions." Criminal Trial Transcript, July 20, 1995, p. 3.
Graham's July 20 motion concerned itself exclusively with allegations of prosecutorial and police misconduct. "Practice Book § 902 [now § 42-53] is concerned with motions for a new trial based on errors [of the trial court] during the trial." State v. Jones, 205 Conn. 723, 729 (1988).
Petitioner next claims that Graham consumed alcohol at lunch and was intoxicated during the criminal trial. Aside from petitioner's own testimony, there was no evidence presented at the habeas trial to support this claim. A review of the criminal trial transcript shows that at all times, Graham's statements and comments to the court, in examining witnesses and in presenting argument to the jury were lucid, logical and appropriate. This court therefore finds petitioner has failed to prove deficient performance.
Petitioner also claims that at the time of sentencing, Graham made no statement to the trial court on petitioner's behalf. The transcript of the sentencing hearing shows that Graham made no statement on petitioner's behalf, but rather at petitioner's request submitted a five-page statement written by petitioner. At the habeas trial, no evidence was adduced as to what additional facts, argument or evidence Graham could have or should have introduced at sentencing. Thus while Graham's performance at sentencing may have been deficient, petitioner has failed to prove the prejudice prong.
In conclusion petitioner here has neither affirmatively shown deficient performance nor the prejudice arising therefrom. Even assuming deficient performance by Graham, which petitioner has not shown, petitioner has presented no evidence that such deficient performance resulted in prejudice. In particular with respect to the claims relying upon the untimely disclosure of the exculpatory statements, the Appellate Court's decision on petitioner's second claim on direct appeal precludes an attempt by petitioner to show the required prejudice.
Based on the foregoing, the petition for a writ of habeas corpus is denied. Petitioner's counsel shall prepare and file a judgment file within thirty days.