Opinion
No. CV 07 4001716
February 11, 2010
MEMORANDUM OF DECISION
The petitioner, Anthony Brunetti, alleges in his petition for a writ of habeas corpus, initially filed on May 7, 2007 and amended on September 30, 2008, that his conviction and incarceration are illegal because they were obtained with evidence seized in violation of the fourth amendment to the United States Constitution (count one) and of article first, § 7, of the Constitution of Connecticut (count two). The petitioner also alleges that he was denied the effective assistance of counsel at the trial level in violation of the sixth and fourteenth amendments to the United States Constitution (count three). Consequently, he asserts that he is entitled to have his conviction set aside and the matter restored to the docket of the superior court for further proceedings. For reasons set forth more fully below, the petition is denied.
In counts one and two of his petition, the petitioner claims that the police unlawfully searched and seized evidence from his home because even though his father consented to the search, his mother did not and his father's consent cannot trump his mother's contemporaneous refusal to consent. In count three, he complains that his trial counsel rendered ineffective assistance by failing to properly investigate and research all possible grounds for moving to suppress the evidence seized from his home. Specifically, he alleges that trial counsel should have moved to suppress the evidence on the ground that the police seized it in violation of the fourth amendment to the United States Constitution and of article first, § 7, of the Constitution of Connecticut because while his father consented to the search his mother did not. He also alleges that trial counsel should have created an adequate record of his mother's refusal to consent to the search. Respondent's return denies the material allegations raised in the petition and raises procedural default as to the claims in counts one and two. The petitioner filed a reply, alleging cause for the procedural default.
In addition to raising the defense of procedural default, the respondent has asserted that pursuant to Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the petitioner is not entitled to review of, or relief upon, his claims in counts one and two because new constitutional rules of criminal procedure cannot be announced in or applied to cases that are on collateral review. Since the defense of procedural default is dispositive as to these claims it is not necessary for the court to address the merits of this additional defense.
This matter came to trial before this court on September 21, 2009. The petitioner's mother, Dawn Brunetti, his father, Anthony Brunetti, Sr., and his trial counsel, Attorney Vito Castignoli, all testified at trial. In addition, the court received numerous pieces of documentary material into evidence, including the transcript of the petitioner's criminal trial. The Court has reviewed all of the testimony and documentary evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a criminal case in the judicial district of Ansonia-Milford, under Docket No. CR00-0039652, in which he was charged with murder in violation of General Statutes § 53a-54a.
2. The petitioner pleaded not guilty and exercised his right to a jury trial.
3. As regards the charged crime, the jury reasonably could have found the following facts. "On the evening of June 23, 2000, thirty-five-year-old Doris Cram (victim) left her house and walked to Sonny's Bar on Campbell Avenue in West Haven. After the victim left the bar, she encountered the nineteen-year-old defendant near the intersection of Campbell Avenue and Main Street. The victim approached the defendant and asked whether he had any marijuana. The defendant replied that he did, and asked the victim to smoke with him behind the Washington Avenue Magnet School. After sharing a marijuana cigarette, the defendant and the victim began kissing and engaging in sexual foreplay. After a short time, the defendant and the victim partially removed their clothing, laid on the ground and began engaging in sexual intercourse. After having intercourse for about fifteen minutes, the victim asked the defendant to stop because the sexual activity was hurting her. The defendant ignored the victim's request and he continued until he reached an orgasm. After the intercourse ended, the victim got up, cursed at the defendant and told him she was going to call the police. In response to the victim's threat, the defendant grabbed the victim in a chokehold, punched her in the head, dragged her by her hair, and then by her feet, across the ground, and repeatedly struck her over the head with an empty glass bottle. The defendant then left the victim's body in the high grass behind the school, throwing her clothing and the bottle nearby. As he left the school area, the defendant walked passed Jerrell Credle, Mike Banores, Jose Rivera and Michael Scott, who were seated at a picnic table on the school grounds. Credle recognized and greeted the defendant. The defendant acknowledged Credle, but did not stop to talk to him or the others, and continued to his home at 208 Center Street, where he lived with his parents.
4. "Following the discovery of the victim's body the next day, the West Haven police department obtained information suggesting that the defendant might be involved in the victim's murder. Detective Anthony Buglione and Joseph Biondi (detectives) went to the defendant's home to question the defendant. The detectives approached the defendant's parents, who were sitting on the front porch of their home, and asked to speak with the defendant. Anthony Brunetti, Sr. the defendant's father, went inside the house to find the defendant while the detectives remained outside with the defendant's mother, Dawn Brunetti. The defendant emerged from the Brunetti home with his father ten to fifteen minutes later. The detectives then told the defendant that they wanted to bring him to the West Haven police department for questioning, and asked him to produce the clothes he had worn the previous evening. The defendant retrieved some clothing from his bedroom, and the detectives then drove the defendant to the police station for questioning. The defendant's parents followed the detectives to the police station in their own car.
5. "At the police station, the detectives questioned the defendant in an interrogation room, while the defendant's parents remained in the station's waiting area. Sometime during the questioning, Detective James Sweetman of the West Haven police department and State Trooper Mark Testoni approached the defendant's parents and asked them to sign [a] consent form to allow the West Haven police to search the Brunetti residence. The defendant's father signed the form but the defendant's mother refused to sign the form. The defendant's parents then left the police station to let the police into their home to conduct the search while the defendant remained at the station with the detectives. During the search of the home, the police looked inside the washing machine and found several items of recently washed clothing, including a pair of sweatpants, two tank tops and a towel. The sweatpants and towel exhibited `bleach-like stains' and one of the tank tops exhibited reddish-brown blood-like stains. When Detective Buglione, who was at the police station questioning the defendant, learned of this discovery, he told the defendant and asked him to elaborate. The defendant then became upset and requested a Bible. The detectives subsequently issued Miranda warnings to the defendant, who proceeded to give an inculpatory statement to the detectives, describing in detail the manner in which he had murdered the victim." State v. Brunetti, 279 Conn. 39, 43-46, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007) ( Brunetti II).
6. The petitioner was represented at trial by Attorney Vito Castignoli.
7. Prior to trial, Attorney Castignoli filed a motion to suppress the physical evidence seized from the petitioner's home on the ground that the petitioner's father's consent to search the home was involuntary.
8. After an evidentiary hearing, the court (Holden, J.), denied the motion to suppress, having found that the petitioner's father's consent was voluntary.
9. During the trial, the prosecution introduced into evidence items seized from the petitioner's home, including his blood-stained clothing and evidence that his clothing had been washed.
10. On March 11, 2002, the jury found the petitioner guilty as charged.
11. Thereafter, the trial court, (Holden, J.), sentenced the petitioner to sixty years of incarceration.
12. The petitioner timely appealed his conviction. On appeal, he claimed, inter alia, that the trial court improperly admitted into evidence physical evidence unlawfully seized from his home, as his mother had refused to consent to the search. State v. Brunetti, 276 Conn. 40, 883 A.2d 1167 (2005) ( Brunetti I).
13. The Supreme Court found that the search of the petitioner's home violated article first, § 7, of the Constitution of Connecticut, holding that "the police must obtain the consent of all joint occupants who are present when consent is sought in order for a search by consent to be valid." Brunetti I, supra, 276 Conn. 52. Accordingly, it reversed the judgment of conviction and remanded the case for a new trial. Id., 65.
14. Thereafter, the State filed a motion seeking reconsideration CT Page 4931 en banc. The Supreme Court granted it.
15. Upon reconsideration, the Supreme Court held that the petitioner was not entitled to review of his unpreserved constitutional claim regarding the allegedly unlawful search and seizure because he failed to establish that the record was adequate for review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). See Brunetti II, supra, 279 Conn. 39. Additionally, the Court found that the petitioner's other claims lacked merit and thereby, affirmed the judgment of conviction. Id., 86.
16. At the habeas trial, Anthony Brunetti, Sr. testified that his wife did not want to sign the consent form presented to them by the police while they were at the police station. Dawn Brunetti testified that she refused to sign the consent form and that she told the police while she was at the police station that she did not want them in her home.
17. Additional facts will be discussed as necessary.
Discussion of Law
The petitioner claims in counts one and two of his amended petition that his conviction is illegal because it was obtained with evidence seized from his home in violation of the fourth amendment to the United States Constitution (count one) and of article first, § 7, of the Constitution of Connecticut (count two) because despite his father's consent to the search, his mother refused to consent. The petitioner contends that his father's consent cannot prevail over his mother's contemporaneous refusal to consent. In response to the petitioner's claims in counts one and two, the respondent has raised the affirmative defense of procedural default on the ground that the petitioner should have, but did not, raise these claims at trial.
"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." Solman v. Commissioner of Correction, 99 Conn.App. 640, 644, 916 A.2d 824, cert. denied, 282 Conn. 901, 918 A.2d 888 (2007). "[T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule . . . Cause and prejudice must be established conjunctively . . . If the petitioner fails to demonstrate either one, a trial court will not review the merits of his habeas claim." (Citations omitted; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 191, 982 A.2d 620 (2009).
"[T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance." (Internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001). "So long as [the petitioner was] represented by counsel whose performance is not constitutionally ineffective under the standard established under Strickland v. Washington, [ 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] . . . [there is] no inequity in requiring him to bear the risk of attorney error that results in a procedural default." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). That is, "attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of . . . procedure." (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, supra, 294 Conn. 194.
The petitioner concedes that he did not raise the claims in counts one and two of his petition at trial. As cause for this procedural default, he claims (1) the ineffective assistance of his trial counsel, as alleged in count three of his petition, or (2) in the alternative, the novelty of the claims at the time of his criminal trial.
Ineffective Assistance of Counsel
"To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, [ supra, 466 U.S. 668]. 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, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
In count three of his petition, the petitioner asserts that he was denied the effective assistance of counsel because his trial counsel failed to research and pursue all possible grounds for moving to suppress the physical evidence seized from his home. Specifically, he alleges that trial counsel failed to move to suppress the evidence under article first, § 7, of the Constitution of Connecticut and the fourth amendment to the United States Constitution on the ground that his father's consent to the search could not have trumped his mother's contemporaneous refusal to consent. He also alleges that trial counsel failed to make an adequate record of his mother's refusal to consent.
"[T]o perform effectively, counsel need not recognize and raise every conceivable constitutional claim." (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 460, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006). "Nor is counsel required to change then-existing law to provide effective representation . . . Counsel instead performs effectively when he elects to maneuver within the existing law, declining to present untested . . . legal theories." (Citation omitted.) Id., 462. "To conclude that counsel is obligated to recognize and to preserve previously undecided constitutional claims, the viability of which is purely speculative, would be to require criminal defense lawyers to possess a measure of clairvoyance that the sixth amendment surely does not demand. Finally, counsel's failure to raise every issue which might have support from other jurisdictions does not constitute ineffective assistance of counsel." (Internal quotation marks omitted.) Id., 462-63.
At the habeas trial, the petitioner's trial counsel, Attorney Castignoli, testified that his trial strategy consisted of focusing on suppression issues. To that end, he thoroughly researched grounds for moving to suppress the physical evidence seized from the petitioner's home. He testified that at the time consent from one co-occupant appeared to be sufficient. In making that assessment, he relied on United States v. Matlock, CT Page 4934 415 U.S. 164, 170, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), in which the Supreme Court concluded that "the consent of one who possesses common authority over premises is valid as against the absent, nonconsenting person with whom that authority is shared." Attorney Castignoli further testified that he could not find any Connecticut cases that were factually similar to the present case where one co-occupant consents while the other objects. Accordingly, he sought to suppress the evidence on the ground that only the petitioner's father consented to the search and his consent was not voluntary because he merely acquiesced to a claim of lawful authority to search the home. He argued, citing to State v. Jones, 193 Conn. 70, 80, 475 A.2d 1087 (1984), for the principle that "the intimation that a warrant will automatically issue is as inherently coercive as the announcement of an invalid warrant," that the petitioner's father's consent was involuntary because his brother, a high ranking police officer, told him that if he did not consent to the search the police could just get a warrant. The court, (Holden, J.), ultimately found this argument to be unpersuasive in light of the testimony adduced at the hearing on the motion to suppress.
The petitioner argues that Attorney Castignoli, recognizing the importance of suppressing the evidence seized, should have raised every colorable challenge to the search. He admits that a factually similar claim had not yet been presented to an appellate court in Connecticut but points to persuasive authority, which existed at the time of his criminal trial, recognizing the rights of a co-occupant who is present and objects to the search. See e.g., 3 W. LaFave, Search and Seizure (2d Ed. 1987) § 8.3(d), p. 252 ("the risk assumed by joint occupancy is merely an inability to control access to the premises during one's absence"); State v. Leach, 782 P.2d 1035, 1040 (Wash. 1989) ("should the cohabitant be present and able to object, the police must also obtain the cohabitant's consent"); In re Welfare of D.A.G., 484 N.W.2d 787, 790 (Minn. 1992) ("the risk that one co-inhabitant might permit the common area of a jointly occupied premises to be searched in the absence of another is qualitatively different from the risk that a warrantless search will be conducted over the objection of the present joint occupant . . .").
Notwithstanding the existence of persuasive authority from other jurisdictions, the claim was, and remains one, of first impression in Connecticut. As noted supra, counsel is not "obligated to recognize and to preserve previously undecided constitutional claims, the viability of which is purely speculative . . ." CT Page 4935 Ledbetter v. Commissioner of Correction, supra, 275 Conn. 462. Nor is he required to raise issues having support from other jurisdictions. Id., 463. Accordingly, there is no merit to the petitioner's claim of ineffective assistance of counsel in this context. All that the petitioner has proven is that Attorney Castignoli maneuvered within the existing law; he has not proven deficient performance.
Since Attorney Castignoli cannot be faulted for failing to raise the constitutional claims asserted in counts one and two of the petitioner's petition, he likewise cannot be held to have performed deficiently for failing to make an adequate record of the petitioner's mother's refusal to consent to the search of the home. As testified to by Attorney Castignoli, in moving to suppress the evidence as he did at trial, his goal was to establish that the petitioner's father's consent was involuntary and thus, invalid. His emphasis, as would be expected under such circumstances, was not so much on the petitioner's mother's refusal to consent as it was on the involuntariness of the petitioner's father's consent.
Moreover, even assuming deficient performance, the petitioner has failed to prove any prejudice resulting therefrom. "In order to show ineffective assistance for the failure to make a suppression motion, the underlying motion must be shown to be meritorious . . . [I]f that showing is made, there also must be a reasonable probability that the verdict would have been different if the evidence had been suppressed." (Citation omitted; internal quotation marks omitted.) Harvey v. Commissioner of Correction, 98 Conn.App. 717, 725, 912 A.2d 497 (2006), cert. denied, 281 Conn. 914, 916 A.2d 55 (2007). The petitioner has not made this showing.
The petitioner relies on Brunetti I, supra, 276 Conn. 40 and Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), to establish that the physical evidence seized from his home would have been suppressed had Attorney Castignoli moved to suppress it on the ground that his mother refused to consent to the search. His reliance on both cases is misplaced. Brunetti II, supra, 279 Conn. 39 superseded Brunetti I. See Brunetti II, supra, 279 Conn. 43 n. 2 ("[t]his opinion supersedes our decision in [ Brunetti I]"). Accordingly, Brunetti I is no longer good law. As for Randolph, the Supreme Court only held "that a physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant." (Emphasis added.) Georgia v. Randolph, supra, 547 U.S. 122-23. In that case, the co-occupant seeking to suppress the evidence seized was present at the scene and unequivocally refused to give the police consent to search his home. Id., 107. Upon his refusal, the police turned to his wife who was also present at the scene and asked for consent to search the home, which she "readily gave." Id. Based on her consent, the police searched the home and seized the evidence. Id.
In the present case, the petitioner, the co-occupant seeking to suppress the evidence seized, was not present at the scene objecting to the search of his home. His father, as found by the trial court and the Supreme Court on direct appeal, voluntarily consented to the search. See Brunetti II, supra, 279 Conn. 69-71. It is not clear whether his mother affirmatively refused to consent to the search, as alleged by the, petitioner. What is clear is that she refused to sign the consent form presented to her by the police but "the act of declining to sign a consent to search form is not tantamount to a refusal to consent to the search . . ." (Emphasis in original.) Id., 56. Based on her testimony at the habeas trial, this court finds that not wanting to have any part in the search of her home, she took no clear position regarding it.
Regardless of his mother's position, the search of the petitioner's home and specifically, the seizure of evidence from the laundry room was lawful as to the petitioner because his father had the authority to consent to the search and did so voluntarily. "It is axiomatic that searches and seizures inside a home without a warrant are presumptively unreasonable . . . A warrantless search or entry into a house is not unreasonable, however . . . when a person with authority to do so has freely consented." (Internal quotation marks omitted.) State v. Whealton, 108 Conn.App. 172, 180, 947 A.2d 965, cert. denied, 288 Conn. 909, 953 A.2d 655 (2008). "[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared." United States v. Matlock, supra, 415 U.S. 170. As an owner of the home, the petitioner's father clearly had the authority to consent to the search of it, especially to a search of the laundry room where the evidence was seized. As the law stands presently, his consent is valid as against the petitioner who was not present at the time of the search. "The authority which justifies the third-party consent . . . rests . . . on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." (Citations omitted; emphasis added.) Id., 171 n. 7. Consequently, the petitioner has failed to establish that a motion to suppress on the ground that his mother did not consent to the search of the home would have been successful.
Since the petitioner has failed to prove that he was denied the effective assistance of counsel, he has likewise failed to demonstrate cause for failing to raise his constitutional claims at trial on the basis of the ineffective assistance of his trial counsel. In the alternative, he has alleged the novelty of his constitutional claims as cause.
The Novelty of the Claims
"[W]here a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures." (Emphasis added.) Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). However, "[t]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 218 Conn. 403, 422, 589 A.2d 1214 (1991).
The petitioner initially raised the constitutional claim that his mother's refusal to consent rendered the search of his home unlawful on direct appeal. His appellate counsel grounded this claim on the "explicit limitation" contained in Matlock, cases from other jurisdictions recognizing the rights of a co-occupant who is present and objecting to the search, Connecticut's "demonstrated constitutional preference for warrants" and Connecticut's "sound `public policy' of protecting residential premises from unjustified intrusions." Petitioner's criminal trial commenced on February 28, 2002 and concluded on March 11, 2002. He filed his appellate brief on September 25, 2003. There were no relevant developments in the law between the time of petitioner's criminal trial and his first appeal. As demonstrated by the petitioner, this claim had been percolating in courts around the country in some form or another since at least the late 1980s. Under these circumstances, this court cannot conclude that the legal basis for such a claim was not reasonably available to the petitioner's trial counsel.
"[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared." (Emphasis added.) United States v. Matlock, supra, 415 U.S. 170.
Respondent's Exhibit A, pp. 29-34.
Since the time of petitioner's direct appeal, Randolph was decided by the Supreme Court. As noted supra, Randolph announced "the rule that a physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant." Georgia v. Randolph, supra, 547 U.S. 122-23. While this decision may lend support to the petitioner's constitutional claim it does not settle the question of what effect if any a physically present co-occupant's express refusal has on the rights of an absent, nonconsenting co-occupant. In any event, "the question is not whether subsequent legal developments have made counsel's task easier, but whether at the time of the default the claim was `available' at all." Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). In this case, the claim was available at the time of the default; the petitioner's defense counsel simply failed to recognize it. Accordingly, the petitioner has failed to prove the novelty of his claims as cause for his procedural default.
Moreover, even assuming the novelty of his constitutional claims, the petitioner has failed to establish any resulting prejudice, as discussed supra. As a result thereof, he has failed to overcome the procedural default of counts one and two.
CONCLUSION
Having concluded that counts one and two of the petitioner's petition are procedurally defaulted and that the petitioner has failed to meet his burden in proving his claim of ineffective assistance of trial counsel, the petition for a writ of habeas corpus is, thus, denied. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.