Opinion
No. CV04-4000209
February 11, 2009
MEMORANDUM OF DECISION
The petitioner, Boone Synakorn, pro se, filed a petition for a writ of habeas corpus on or about November 26, 2004. The respondent, through Assistant State's Attorney Gerard Eisenman, timely appeared in 2004. On or about May 23, 2006, counsel for the petitioner, Kalisha Raphael, filed an appearance on behalf of Mr. Synakorn. On or about September 10, 2008, the petitioner filed an amended petition for a writ of habeas corpus. In the amended petition, the petitioner sets forth two counts of ineffective assistance of appellate counsel. The petitioner in count one contends that his appellate attorney, Howard Owens, failed to raise the issue of whether the trial court erred by denying the defendant's motion for mistrial and motion for a new trial. In count two, the petitioner claims he was denied effective assistance of his appellate counsel by counsel's failure to raise on appeal the denial of the defendant's motion for judgment of acquittal premised upon a claim of insufficiency of evidence with respect to the charge of possession of cocaine with the intent to sell in violation of General Statutes § 21a-278(b) and possession of cocaine with the intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a(b). The petitioner in his prayer for relief seeks, in the alternative, that his convictions be vacated and his case be remanded to the trial court for a new trial, he be granted a new appeal, discharged, or other relief required under law. In its Return filed on or about September 29, 2008, the respondent denies the essential allegations in counts one and two. In addition, the respondent raises a special defense of procedural default. In the Reply, the petitioner denies procedural default applies to his claims and, in the alternative, claims that any default was the result of ineffective assistance of counsel. The parties appeared before the court, Nazzaro, J., on September 30, 2008 for a habeas trial. The parties filed memoranda of law in support of their respective positions on or about October 30, 2008.
At the time of the habeas trial, the Honorable Howard Owens was a Judge Trial Referee in the Superior Court.
FINDINGS OF FACT
The petitioner was the defendant in a criminal case known as State v. Synakorn, Docket Number CR92-81490 in the Judicial District of Fairfield at Bridgeport. The petitioner was charged with possession with the intent to sell in violation of General Statutes § 21a-278(a), possession with intent to sell in violation of General Statutes § 21a-277(b) and possession with the intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278(b). A trial commenced December 6, 1994 before the Honorable Judge Samuel Freedman. The petitioner was represented at trial by attorney Frank J. Riccio of Bridgeport. On December 13, 1994, a jury returned a verdict of guilty on all counts. After hearing and denial of motions for judgment of acquittal and a motion for a new trial, the court on March 7, 1995 sentenced the petitioner to a term of imprisonment of twenty-seven years on the charge of possession with the intent to sell (freebase cocaine), five years concurrent on the charge of possession with the intent to sell (marijuana) and three years for possession with the intent to sell (freebase cocaine) consecutive to the charge of possession with the intent to sell within 1500 feet of a school. Accordingly, the total effective sentence for the petitioner was thirty years to serve. The petitioner appealed his convictions. On appeal, the petitioner was represented by attorneys Robert G. Golger and Howard T. Owens. The Connecticut Supreme Court affirmed the conviction in State v. Synakorn, 239 Conn. 427, 685 A.2d 1123 (1996). The petitioner applied for sentence review. As a result, the sentence review panel, Purtill, J., Klaczak, J. and Norko, J., remanded the case back to the trial court where the court, Freedman, J., re-sentenced the petitioner to a total effective sentence of twenty-five years. The petitioner is currently serving his twenty-five-year sentence on parole.
The facts of the case are set forth by the court in State v. Synakorn, supra, 239 Conn. 429-31: "Pursuant to a search warrant, on February 21, 1992, state and local law enforcement officials executed a search of an apartment in Bridgeport that the defendant shared with Mary Dudac and Sean Lay.[fn4 omitted] During the course of that search, the police seized a black duffel bag and a paper bag from a living room closet. Inside these bags police found 6002 vials containing a substance that appeared to be crack cocaine. The contents of two of the vials were field-tested and showed a positive reaction for cocaine. The total weight of the contents of all the vials was 443.21 grams, or approximately 14.223 ounces.[fn5 omitted] Subsequently, fifteen of the 6002 vials were tested at the Connecticut department of health and addiction services. The contents were found to weigh a total of 1.07 grams, 0.92 grams of which was pure cocaine.[fn6 omitted] The evidence officer who participated in the search, Detective Esther Ramos of the Bridgeport police department, testified that the cocaine was packaged in the vials for street sale. While searching the kitchen cabinets, a police officer found a metal tin that contained a plastic bag filled with a plant-like substance. Another, larger, plastic bag found with the tin contained twenty-five small `zip-lock' bags containing a plant-like substance that appeared to be marijuana. The total weight of the zip-lock bags was 658 grams. Ramos conducted two field tests on the plant-like substance found in the kitchen, one at the apartment and the other at the police station. Both tests evidenced a positive reaction for marijuana. Ramos further testified that the marijuana had been packaged for street sale. A search of Dudac's clothing revealed additional marijuana. Although none of the marijuana itself was offered as evidence at trial,[fn7 omitted] photographs of the tin container, the plastic bags and the plant-like material were presented as evidence by the state and testified to by Ramos. The defendant's two housemates provided the police with statements that the black duffel bag belonged to the defendant. Additionally, Dudac testified at trial that she had seen the defendant place the duffel bag in the closet where it was later found by the police."
Other facts will be discussed as needed.
DISCUSSION
The respondent first claims that the petitioner is procedurally defaulted from raising either of his claims, either on the petition for a new trial or a previous habeas case, Docket No. CV 02 0397603 in the judicial district of Fairfield at Bridgeport. If a habeas petitioner raises claims for the first time in a habeas petition that could have been raised at trial or on direct appeal, he is procedurally defaulted from raising them unless he can show cause and prejudice for the default. Jackson v. Commissioner of Correction, 227 Conn. 124, 131-36, 629 A.2d 413 (1993). "Under [the cause and prejudice] standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition." (Internal quotation marks omitted.) Council v. Commissioner of Correction, 286 Conn. 477, 489, 944 A.2d 340 (2008). Nevertheless, "the cause and prejudice test is unnecessary when a habeas court is faced with a claim formulated within the narrow confines of ineffective assistance of appellate counsel." Johnson v. Commissioner of Correction, 285 Conn. 556, 569-70, 941 A.2d 248 (2008). The petitioner's claim does not implicate procedural default.
The respondent further contends that the failure to raise these claims in the first habeas petition constitutes procedural default. Whether procedural default applies to claims that could have been, but were not, raised in a previous habeas petition is not entirely clear in Connecticut jurisprudence. See Mejia v. Commissioner of Correction, 98 Conn.App. 180, 194-96, 908 A.2d 581 (2006) (noting that question has not been decided by Connecticut Supreme or Appellate courts but not reaching the issue because not pleaded by respondent). Absent explicit appellate authority to the contrary, this court concludes that procedural default is inapplicable to the petitioner's claims.
In Henderson v. Commissioner of Correction, 104 Conn.App. 557, 570, 935 A.2d 162, cert. denied, 285 Conn. 911, 943 A.2d 470 (2007), the court stated: "Our review of the record before the habeas court reveals that the petitioner did not raise his constitutional claims on direct appeal or in his first petition for a writ of habeas corpus. Those claims, therefore, would be subject to the defense of procedural default in the habeas proceedings." The mere inclusion of the phrase "or in his first petition for a writ of habeas corpus," without discussion, does not necessarily indicate that the failure to raise the claims in the first petition would be grounds for default, since the failure to raise them at trial or on direct appeal would themselves be grounds for the court's finding of procedural default. In any event, in the present case, the petitioner asserted in his reply that the failure to raise these claims in the first habeas trial was itself the result of ineffective assistance of habeas counsel, attorney John Merchant. The petitioner credibly testified at the habeas trial that his first habeas petition was dismissed without his knowledge or attendance and that he did not even meet with his attorney prior to its dismissal. The case records and lack of an issued decision support the contention that the case was dismissed without much, if any, effort put into its prosecution. This court concludes that, even if procedural default were applicable, the petitioner has demonstrated the cause and prejudice necessary to overcome it.
"In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient . . . Second, the [petitioner] must show 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 adversarial process that renders the result unreliable." (Internal quotation marks omitted.) Bowens v. Commissioner of Correction, 104 Conn.App. 738, 740-41, 936 A.2d 653 (2007), cert. denied, 286 Conn. 905, 944 A.2d 978 (2008). "[The habeas] court can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Rivera v. Commissioner of Correction, 70 Conn.App. 452, 456, 800 A.2d 1194, cert. denied, 261 Conn. 921, 806 A.2d 1061 (2002). "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." (Internal quotation marks omitted.) Langston v. Commissioner of Correction, 104 Conn.App. 210, 214, 931 A.2d 967, cert. denied, 284 Conn. 941, 937 A.2d 697 (2007).
"While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).
To satisfy the prejudice prong, the petitioner "must show a reasonable probability that, but for his counsel's [error], he would have prevailed on his appeal." Small v. Commissioner of Correction, 286 Conn. 707, 720, CT Page 3023 946 A.2d 1203, cert. denied, Small v. Lantz, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). In reviewing such a claim, the habeas court considers the standard of review that would be applicable by the Appellate Court. Id., 722.
Petitioner's claim of ineffective assistance of appellate counsel is based, in part, on claimed failure to appeal the court's denial of counsel's motion for a mistrial. Mr. Riccio unsuccessfully moved for a mistrial after the witness Pam Dudac testified in response to a question posed by counsel, presumably in an attempt to discredit the witness.
Q: But you just — you were just a person that by virtue of things you heard didn't like him.
A: I didn't like the things I'd heard he'd done. I didn't like the fact that my daughter showed ma (sic) a gun that belonged to him that was stored in our house one time. (Petitioner's exhibit 1 at p. 240.)
In response to this, the court gave curative instruction, advising the jury to strike the evidence from their minds.
THE COURT: Ladies and Gentlemen, when we began I had occasion to talk to you about striking things from the record and you not considering things that may be said even though you've heard them as part of your decision making process and we have just arrived at that particular position. There was some comment about a gun. I'm going to ask you to please disregard that. I am striking it from the record and I'm asking you not to consider that in any part of your decision making process. You've head it but you're going to eliminate it. Okay? It is very important in all cases that if a trial is to be proper and is to go through properly and justly that we follow the rules of evidence. They're very clear and very important. I must ask you to do that. Thank you. (Petitioner's exhibit I at p. 250.)
In its charge to the jury, the court again reminded the jury to disregard evidence which was stricken.
You are to consider only the evidence that was admitted and if some evidence (was) offered and refused you must not consider it. You may draw no inferences from it. It means that I have decided that the stricken or refused material should play no part in your decision making process. So, don't speculate on what the answer might be. Erase it from your minds. (Petitioner's exhibit 4 at p. 469.)
"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 . . . The trial court enjoys wide discretion in deciding whether a mistrial is warranted . . . and its evaluation as to events occurring before the jury is to be accorded the highest deference . . . Every reasonable presumption will be given in favor of the trial court's ruling . . . because the trial court, which has a firsthand impression of the jury, is in the best position to evaluate the critical question of whether the juror's or jurors' exposure has prejudiced a defendant . . . It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court's exercise of discretion . . . A reviewing court gives great weight to curative instructions in assessing error." (Internal quotation marks omitted.) State v. Aponte, 66 Conn.App. 429, 450, 784 A.2d 991 (2001), cert. denied, 259 Conn. 907, 789 A.2d 995 (2002). "The jury . . . was reminded in the court's final charge that stricken testimony is not evidence. Unless there is evidence to the contrary, the jury is presumed to follow the court's instructions." (Internal quotation marks omitted.) State v. Molnar, 79 Conn.App. 91, 106-07, 829 A.2d 439 (2003), aff'd sub. nom., State v. Eric M., 271 Conn. 641, 858 A.2d 767 (2004). Here, upon hearing the objectionable testimony, the trial court immediately struck the testimony from the record. The judge was in the best position to gauge any harm. In employing the curative instruction, the court eradicated any potential harm. In further instructing the jury in his final charge to disregard stricken evidence, the court, again, emphasized the need for the jury to follow its admonition to disregard stricken evidence. There is no reason to presume the finder of fact did not follow the court's instructions. It was not error for the court to deny the motion for a mistrial. The record also reflects defense counsel filed a motion for a new trial. The court denied the motion for a new trial. (Petitioner's exhibit 6 at p. 175.) At the habeas trial, the petitioner's appellate counsel, Howard Owens, credibly testified that he discussed this issue with the petitioner and concluded any claim of error was without merit. Mr. Owens testified that it was a strategic decision not to pursue this issue, that his intention was to proceed with what he termed the "strongest issues" consistent with sound appellate advocacy practice. By the same token, Mr. Owens testified as well that he had considered and abandoned any claim of error with respect to denial of the motion for a new trial. The petitioner has not shown that had any of these issues been raised, his appeal would have been sustained. Small v. Commissioner of Correction, supra, 286 Conn. 721-24. The petitioner has not established deficient performance of his appellate attorneys nor prejudice on either counsel's part by counsels' strategic decision to not pursue any claim to appeal the denial of the motions for mistrial or new trial. The court denies the petition for writ of habeas corpus with respect to count one.
In count two, the petitioner claims his appellate attorney was ineffective by failing to raise on appeal a claim of insufficiency of evidence with respect to guilty verdicts on charges of possession of cocaine with the intent to sell in violation of § 21a-278(b) and possession of cocaine with the intent to sell within 1500 feet of a school in violation of § 21a-278a(b). The petitioner also complains that appellate counsel failed to appeal the denial of the motion for judgment of acquittal. For reasons set forth below, these claims are without merit.
The Connecticut Supreme Court has articulated the standard of review for a sufficiency of the evidence claim. "In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Farnum, 275 Conn. 26, 32, 878 A.2d 1095 (2005).
In the present case, appellate counsel testified that he considered and dismissed bringing any claims regarding the sufficiency of evidence and the denial of motion for a judgment of acquittal. Mr. Owens testified that although he could not specifically recall discussing these with the petitioner, it was his custom, nonetheless, to review such claims with his client. The court accredits the testimony of the former attorney. In Owens's words, the evidence of guilt was, indeed, "substantial." This conclusion is borne out by the record. The jury found the petitioner guilty of possession of cocaine with intent to sell in violation of § 21a-278(a). The jury could reasonably have found the following facts: Mary Dudac testified that the petitioner brought a duffle bag back to her house. (Petitioner's exhibit 1 at p. 277.) Petitioner told her not to touch it. (Petitioner's exhibit 1 at pp. 277, 285.) Ms. Dudac identified the closet where the petitioner placed the drugs and where the police found them. (Petitioner's exhibit 1 at p. 278.) The witness further testified that the petitioner would come back to the apartment and take it out of the apartment. (Petitioner's exhibit 1 at p. 284.) At the habeas trial, Mr. Owens testified: "I recall he put the people in there [the apartment] and that's where his stash was." Owens also noted there were inconsistencies in the testimony at trial. Another witness, Sean Lay, gave a statement admitted into evidence that the petitioner owned the drugs seized in the apartment. (Petitioner's exhibit 3 at pp. 3, 5, 7-8.) Mr. Lay testified at trial that it was the petitioner who paid the rent for the apartment. (Petitioner's exhibit 3 at pp. 5-6.) A state toxicologist, Dr. Steven Milzoff, testified the substance seized was cocaine in free base form. (Petitioner's exhibit 2 at pp. 370-72.) The quantity exceeded one-half gram. (Petitioner's exhibit 2 at pp. 373-74.) Bridgeport Detective Thomas Russell testified there were more than 6000 vials of narcotics seized. (Petitioner's exhibit 1 at p. 184.) Russell testified the drugs were packaged consistent with the way dealers package such product. (Petitioner's exhibit 1 at pp. 189-90.) Sixty plastic bags of narcotic, said Russell, would be "unusual" for a possessor to have. (Petitioner's exhibit 1 at p. 190.) The duffle bag containing the contraband was found at 31 Remington Street, apartment 3C. (Petitioner's exhibit 1 at p. 190.) A second detective, Ester Ramos, corroborated his colleague's statement that there were in excess of 6000 vials seized. (Petitioner's exhibit 1 at p. 190.) Given the testimony before the finder of fact, there was ample evidence upon which the jury could find the petitioner guilty of possession with intent to sell. The evidence must be viewed in the light most favorable to sustaining the verdict. Proper analysis requires whether the facts construed and the inferences reasonably drawn could have the cumulative force to establish guilty beyond a reasonable doubt. State v. Sargeant, 288 Conn. 673, 679, 954 A.2d 839 (2008).
The petitioner was also found guilty of possession of cocaine with the intent to sell within 1500 feet of a school in violation of § 21a-278a(b). The quality of proof necessary to establish each of the elements of possession of cocaine with intent to sell within 1500 feet of a school is the same with respect to possession of cocaine with intent to sell as previously discussed, with the additional requirement that the act be done within 1500 feet of a school. Detective Russell testified at trial that the apartment where the drugs were seized was, indeed, located about seven hundred feet from Harding High School in Bridgeport. (Petitioner's exhibit 1 at p. 186.) Sufficient evidence was admitted to justify the conviction of guilty on this charge of possession with the intent to sell within 1500 feet of a school. "We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilty is shown by the cold printed record . . . Rather, we must defer to the jury's assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude." (Internal quotation marks omitted.) State v. Synakorn, supra, 239 Conn. 436, quoting State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991). When a petitioner is claiming ineffective assistance of appellate counsel, his burden is to prove that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal. Small v. Commissioner of Correction, supra, 286 Conn. 721-24. This court is constrained to reject the petitioner's claims. In so doing, this court finds that appellate counsel were not ineffective for failing to claim and argue that sufficiency of evidence was lacking with respect to the guilty verdicts on both possession with the intent to sell freebase cocaine and possession with the intent to sell within 1500 feet of a school. Such arguments would not have been successful. By the same token, this court finds petitioner's claims that his appellate attorneys ought to have appealed the denial of the motion for judgment of acquittal and motion for new trial unpersuasive. The petitioner has failed to prove his appellate attorneys were ineffective.
For the foregoing reasons, the petition for a writ of habeas corpus is denied. Judgment shall enter in favor of the respondent. The petitioner is ordered to prepare a judgment file within thirty days. The Clerk is to give the petitioner a notice of his rights of appeal.