Opinion
No. CR 91-73668
September 13, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR A NEW TRIAL
FACTS/PROCEDURAL HISTORY
In June 1993, after a trial to a three-judge panel, the court found the defendant, Martyn D. Bruno, guilty of murder in violation of General Statutes §§ 53a-8 and 53a-54a and guilty of three counts of tampering with physical evidence in violation of § 53a-8 and General Statutes § 53a-155(a)(1). On August 6, 1993, the court sentenced the defendant to sixty years incarceration. Thereafter, the defendant appealed his conviction, and on March 26, 1996, the Connecticut Supreme Court affirmed the judgment of conviction. State v. Bruno, 236 Conn. 514, 673 A.2d 1117 (1996).
Then, on July 10, 1996, the defendant filed a pro se petition for a writ of habeas corpus alleging ineffective assistance of counsel. On December 1, 1997, the defendant filed an amendment to that petition, adding that his right to a jury trial and a public trial had been violated. On June 11, 2001, the defendant filed a third amended petition, which alleged, inter alia, that his trial counsel waived his right to a jury trial without his consent, his appellate counsel failed to present the issue of no jury waiver and the trial court violated his right to due process by failing to canvass the defendant as to the alleged waiver of his right to a jury trial. Bruno v. Tarascio, Superior Court, judicial district of New Haven, Docket No. CV 98 416581 (March 1, 2002, Arnold, J.). The court held a trial on the merits of the defendant's claims on December 6, 2001 and December 10, 2001. Id.
In its memorandum of decision, the court examined and analyzed all of the defendant's claims and ultimately dismissed the defendant's habeas petition. The court found, among other things, that the defendant's credibility was "lacking" and that he was "fully apprised of his right to a jury trial and the option of the court trial before a three judge panel." Id. Although the court was unable to fully review the defendant's waiver claim because the defendant could not demonstrate both good cause for the procedural default and actual prejudice arising therefrom, the court noted that "even if [it] . . . were to review the validity of the [defendant's] waiver claim, the defendant has failed to demonstrate that it was not knowingly, voluntarily and intelligently entered." Id. Although the defendant appealed, the Connecticut Appellate Court affirmed the trial court's decision. Bruno v. Commissioner of Correction, 74 Conn.App. 910, 815 A.2d 297 (2003), cert. denied, 271 Conn. 920, 859 A.2d 577 (2004).
On January 21, 2004, the defendant filed an application for federal habeas corpus relief pursuant to 28 USC 2254. In that proceeding, the defendant claimed that his conviction was unlawful because: (1) the trial court failed to ascertain whether his jury waiver was knowing and voluntary; (2) his attorneys waived his right to a jury trial without his consent; (3) his appellate counsel failed to raise this issue on appeal; (4) the trial court refused to review the psychiatric records of two witnesses; and (5) insufficient evidence was presented to establish the intent element of murder. On September 29, 2006, the district court denied the petition, and on March 13, 2007, the Second Circuit Court of Appeals denied the defendant's motion for a certificate of appealability and dismissed his appeal. The defendant sought further review from the United States Supreme Court, but his petition for certiorari was denied on October 1, 2007.
On August 14, 2009, the defendant, through his counsel, filed what he labeled as a "motion for new trial" pursuant to General Statutes § 52-270 and Practice Book §§ 42-53 and 42-54. On September 18, 2009, the state filed an objection, to which the defendant filed a response on October 15, 2009. The defendant filed an additional memorandum on July 14, 2010. This matter was heard before the court on July 15, 2010. At that time, the defendant's counsel withdrew his "motion" for a new trial pursuant to § 52-270. Despite that withdrawal, the defendant continues to pursue his motion for a new trial under the provisions of Practice Book §§ 42-53 and 42-54. As a result, the court now addresses the merits of the defendant's motion.
An action brought under § 52-270 is typically referred to as a petition for a new trial, not a motion for a new trial. "The differences between a motion for a new trial and a petition for a new trial are matters of substance, not simply matters of form." State v. Arroyo, 67 Conn.App. 154, 156-57, 786 A.2d 1124 (2001).
DISCUSSION
Practice Book § 42-53 provides: "(a) Upon motion of the defendant, the judicial authority may grant a new trial if it is required in the interests of justice. Unless the defendant's noncompliance with these rules or with other requirements of law bars his or her asserting the error, the judicial authority shall grant the motion: (1) For an error by reason of which the defendant is constitutionally entitled to a new trial; or (2) For any other error which the defendant can establish was materially injurious to him or her. (b) If the trial was by the court and without a jury, the judicial authority, with the defendant's consent and instead of granting a new trial, may vacate any judgment entered, receive additional evidence, and direct the entry of a new judgment."
Practice Book § 42-54 further provides that "[u]nless otherwise permitted by the judicial authority in the interests of justice, a motion for a new trial shall be made within five days after a verdict or finding of guilty or within any further time the judicial authority allows during the five-day period."
Approximately sixteen years after his sentencing, the defendant argues that this court should waive the five day requirement under Practice Book § 42-54 and permit a new trial in the interests of justice, particularly in light of the Connecticut Supreme Court's recent decision in State v. Gore, 288 Conn. 770, 955 A.2d 1 (2008). Gore addressed the requirement of a knowing, intelligent and voluntary waiver of the right to a jury trial. Specifically, the defendant argues that Gore supports his motion for a new trial because, in that case, the court held that the record must affirmatively indicate that the defendant knowingly, voluntarily and intelligently waived his right to a jury trial. Absent this finding, the defendant argues, he was deprived a fundamental, substantial constitutional right and should be granted a new trial in the interests of justice. Although the defendant concedes that rule articulated in Gore is prospective, he argues that the Gore holding applies retroactively. Moreover, the defendant argues that the court has jurisdiction to consider a motion for a new trial because Practice Book § 42-53 expressly confers jurisdiction on this court to grant a new trial in the interests of justice. Finally, the defendant argues that, because his motion is founded on Gore, a recent decision, the doctrine of res judicata does not apply.
In its objection, the state raises two main arguments. First, the state argues that the court is without jurisdiction to consider a motion for a new trial because the court lacks jurisdiction over post-judgment motions. The state also argues that the defendant's motion is untimely because it was filed sixteen years late. The state argues in the alternative that even if the defendant was not barred by procedure or time limits, he would not be entitled to relief sought because he has already litigated his claim and that claim has been resolved against him. Thus, the state asserts that the defendant is barred from re-litigating the same issues. Finally, as to the applicability of Gore, upon which the defendant primarily relies, the state argues that Gore articulates a prospective rule, not a retroactive one, and that, regardless, the Superior Court has already determined that there is sufficient evidence on the record that the defendant knowingly and voluntarily waived his right to a jury trial.
As a threshold matter, the court must first address the jurisdictional argument raised by the state. "In a criminal case the imposition of sentence is the judgment of the court . . . When the sentence is put into effect and the prisoner is taken in execution, custody is transferred from the court to the custodian of the penal institution. At this point jurisdiction of the court over the prisoner terminates . . . For example, this court has held that a trial court lacked jurisdiction to grant a defendant's motion for judgment of acquittal, alleging insufficient evidence, filed six weeks after he had begun serving his sentence because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence." (Citations omitted; internal quotation marks omitted.) State v. Reid, 277 Conn. 764, 775, 894 A.2d 963 (2006). The court agrees with the state that this court has limited jurisdiction, which ends when a prisoner begins serving his or her sentence. See also State v. Das, 291 Conn. 356, 261-70, 968 A.2d 367 (2009); State v. Luzietti, 230 Conn. 427, 431-32, 646 A.2d 85 (1994). Moreover, there is nothing in Practice Book §§ 42-53 and 42-54 that grants jurisdiction to this court after a defendant has begun serving his or her sentence.
Additionally, even if Practice Book §§ 42-53 and 42-54 conferred jurisdiction on this court, the defendant's motion for a new trial is untimely. In the present matter, the defendant was found guilty of the aforementioned crimes in June 1993. The defendant filed the present motion on August 14, 2009, more than sixteen years later. Practice Book § 42-54 provides that a motion for a new trial must be filed within five days after a guilty verdict, unless otherwise permitted "in the interests of justice." Based on the aforementioned dates, the court concludes that the defendant's motion was filed well in excess of the time period allowed under Practice Book § 42-54. As a result, the defendant's motion is untimely and does not comply with the applicable Practice Book requirement.
Furthermore, even if the court had jurisdiction in the present matter and the defendant's motion was timely, the court concludes that it is not in "the interests of justice" to grant the defendant's motion. In Gore, which the defendant cites in support of his motion, the issue before the Connecticut Supreme Court was whether "defense counsel validly waived a jury trial on behalf of the defendant . . . when there [was] no evidence that the defendant also personally waived the right on the record." State v. Gore, supra, 288 Conn. 770, 772. During Gore's trial, "[n]either the trial court nor defense counsel asked the defendant whether he consented to the waiver, nor did the defendant personally acknowledge the waiver on the record." Id., 774-75. In analyzing whether Gore had knowingly, intelligently and voluntarily waived his right to a jury trial, the court's task was "to determine whether the totality of the record furnishes sufficient assurance of a constitutionally valid waiver of the right to a jury trial," which was "not to be presumed from a silent record." Id., 776-77.
After concluding that defense counsel alone may not waive a jury trial on the defendant's behalf as a matter of trial strategy, the court analyzed what is constitutionally required to demonstrate that the "defendant, himself, knowingly, intelligently and voluntarily waived a jury trial" and whether "the record must contain some affirmative indication from the defendant personally that he or she is waiving the right to a jury trial, or alternatively, whether counsel's expression of the waiver on the defendant's behalf, combined with the defendant's silence while counsel waives the right to a jury trial, may constitute a knowing, intelligent and voluntary waiver." Id., 777. Ultimately, the court concluded that there "must be some affirmative indication from the accused personally, on the record, that he or she has decided to waive the fundamental right to a jury trial because the defendant's silence is too ambiguous to permit the inference that he or she has waived such a fundamental right." Id., 781-82.
Despite this conclusion, the court also noted that "[a]lthough the constitution requires an affirmative indication of a jury trial waiver on the record from the defendant personally, the constitution does not mandate the particular form that this personal waiver must take." Id., 786. As a result, the court exercised its "supervisory authority to require prospectively that, in the absence of a written waiver, the trial court must canvass the defendant briefly to ensure that his or her personal waiver of a jury trial is made knowingly, intelligently and voluntarily." Id., 786-87. The court decided to exercise this supervisory authority because "prescribing a canvass is appropriate for future cases involving the validity of a jury trial waiver because many of the questions raised about the validity of the waiver would be circumvented by a canvass on the record, particularly given the peculiarly personal nature of the defendant's right to a jury trial." Id., 787.
The court concluded: "Accordingly, in the future, when a defendant, personally or through counsel, indicates that he wishes to waive a jury trial in favor of a court trial in the absence of a signed written waiver by the defendant, the trial court should engage in a brief canvass of the defendant in order to ascertain that his or her personal waiver of the fundamental right to a jury trial is made knowingly, intelligently and voluntarily." (Emphasis added.) Id., 787-88. In the recent case of State v. Tocco, 120 Conn.App. 768, 993 A.2d 989, cert. denied, 297 Conn. 917, 996 A.2d 279 (2010), which the Appellate Court decided after Gore, the court specifically noted that the Gore court "ruled that its holding applied prospectively" and that the "procedural safeguards afforded by the court in Gore," did not apply to Tocco because Gore was officially released on September 23, 2008, and the court had already imposed its sentence on the defendant, Tocco, on August 15, 2008. Id., 778-79 n. 4.
In the present matter, despite the defendant's arguments to the contrary, the Gore holding does not apply retroactively. The Gore court stated clearly that the canvass requirement was to apply in future cases. Moreover, as illustrated in Tocco, the Gore holding does not apply in the present matter because Gore was officially released on September 23, 2008, and the defendant in the present matter was sentenced on August 6, 1993.
Additionally, even if the Gore holding applied retroactively, the record furnishes sufficient assurance that the defendant validly waived his right to a jury trial. In the court's memorandum of decision from the defendant's habeas trial, the court noted that the defendant stated "yes" when he appeared in court on August 12, 1991, and was asked by the court if he understood his right to a trial by the court or by the jury. Bruno v. Tarascio, supra, Superior Court, Docket No. CV 98 416581. Moreover, although the court noted that several transcripts were unavailable for review, the court stated that "[t]rial counsel testified that a member of the three judge panel did canvass the [defendant] regarding his election for a court trial during one of the [defendant's] court appearances for a pretrial conference" and "[t]rial counsel also testified that the [defendant] was canvassed regarding his election for a court trial by the court on an additional occasion." Id. Furthermore, during his habeas trial, the defendant "admitted that he had been in court and had been convicted of other crimes prior to his arrest for the present matters," and "that he was familiar with court proceedings, a plea canvass and his right to a jury trial." Id.
As previously noted, the Connecticut Appellate Court affirmed the trial court's decision. See Bruno v. Commissioner of Correction, 74 Conn.App. 910, 815 A.2d 297 (2003), cert. denied, 271 Conn. 290, 850 A.2d 577 (2004).
Finally, based on the habeas trial, the court also concludes that the defendant has fully litigated the issues with respect to his claim that he did not knowingly and voluntarily waive his right to a jury trial. "The related doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter that it already has had a fair and full opportunity to litigate . . . Collateral estoppel, or issue preclusion, means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit . . . [Thus] [i]ssue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment . . . The doctrine of collateral estoppel express[es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest." (Citations omitted; internal quotation marks omitted.) In re Application for Writ of Habeas Corpus by Dan Ross, 272 Conn. 653, 661, 866 A.2d 542 (2005). "[W]e limit the application of the doctrine of res judicata . . . to claims that actually have been raised and litigated in an earlier proceeding." (Internal quotation marks omitted.) Id., 662.
The defendant argues that, because his motion is premised on Gore, he has not already litigated his claims. As previously noted, Gore does not apply to the present matter because the defendant was sentenced in 1993, well before Gore was released in 2008. Moreover, simply because a motion is based on a recent opinion does not mean that certain claims or issues have not already been litigated. Thus, the court concludes that the issue of whether the defendant knowingly, intelligently and voluntarily waived his right to a jury trial has already been litigated and is now barred on the present motion.
CONCLUSION
For all of the foregoing reasons, the defendant's motion for a new trial is denied. So ordered.