Opinion
No. CV 09 4002802
August 18, 2010
MEMORANDUM OF DECISION
The petitioner, Domenick Vallejo, alleges in his petition for a writ of habeas corpus, filed on November 19, 2008 and amended on March 5, 2010, that his prior habeas counsel rendered ineffective assistance. The petitioner was the defendant in two criminal cases in the judicial district of Danbury, bearing docket numbers CR02-0116400 and CR03-0116803. In docket number CR02-0116400, he was charged with criminal possession of a firearm in violation of General Statutes § 53a-217, possession of a weapon in a motor vehicle in violation of General Statutes § 29-38, possession of a controlled substance in violation of General Statutes § 21a-279(c) and possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277(b). In docket number CR03-0116803, he was charged with criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59(a)(1), criminal possession of a firearm in violation of General Statutes § 53a-217 and possession of a weapon in a motor vehicle in violation of General Statutes § 29-38. The court (White, J.) granted the state's motion to join the cases for trial on May 21, 2003. The petitioner also had two violations of probation cases pending, which were tried to the court at the time of the criminal trial. The trial consisted of three days of testimony on May 29, 30 and June 3, 2003. A motion to suppress filed by the petitioner was heard during the trial. The court (White, J.) denied the motion to suppress on May 29, 2003.
Following a trial by jury, on June 3, 2003, the petitioner was found guilty as charged, except in docket number CR02-011640, in which the court (White, J.), prior to jury deliberations, granted the petitioner's motion for judgment of acquittal on the charge of possession of a weapon in a motor vehicle. On July 29, 2003, the court (White, J.) sentenced the petitioner to a total effective sentence of twelve years imprisonment, seven years of which were a mandatory minimum, followed by eight years of special parole. This sentence included a total effective sentence of six years and eleven months imprisonment on the violation of probation cases. Attorney Richard Lafferty represented the petitioner at trial. He was hired by the petitioner on April 23, 2003 to replace Attorney Jeffrey Jowdy, who had been representing the petitioner in the above matters.
The petitioner did not appeal his convictions. In 2004, he filed a petition for a writ of habeas corpus. On April 27, 2005, he amended his petition, wherein he alleged that he was deprived of the effective assistance of trial counsel. Attorney Christopher Neary represented the petitioner in the habeas matter. After a trial on the merits, the habeas court (Fuger, J.) restored the petitioner's appellate rights but denied the remaining counts of ineffective assistance of trial counsel. See Vallejo v. Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. CV 04 0004363 (July 27, 2005, Fuger, J.). The petitioner thereafter directly appealed his convictions. On direct appeal, he claimed that the trial court improperly granted the state's motion for joinder and denied his motion to suppress. The Appellate Court affirmed his convictions. See State v. Vallejo, 102 Conn.App. 628, 926 A.2d 681, cert denied, 284 Conn. 912, 931 A.2d 934 (2007). The present habeas petition followed.
The matter came before this court for a trial on the merits on March 4, 5, 11, May 24, 26 and July 9, 2010. Testifying were the petitioner, Patricia Rodriguez, the petitioner's former girlfriend, Amy DeLoughy, the petitioner's present girlfriend, Attorney Neary, Detective James Fisher, Detective James Hicks, Sergeant John Krupinsky and Attorney Lafferty. The petitioner also presented the testimony of the following experts: Attorney Tom Ullmann, Attorney Sandra Crowel and Attorney Damon Kirchbaum. Both parties submitted exhibits including, but not limited to, transcripts of the criminal proceedings, transcripts of the earlier habeas corpus matter, policies of the Danbury police department and photos of the Blockbuster parking lot in Danbury.
FACTS
The facts underlying the petitioner's convictions in docket number CR03-0116803 (the shooting case) are as follows. Several months prior to May 8, 2002, "the victim and the defendant were involved in a road rage incident that culminated in both of them leaving the road to fight. The fight never occurred, however, because police officers drove by the scene, and the defendant departed. No criminal charges resulted. On May 8, 2002, however, the victim encountered the defendant again. This time, as the victim was stopped at the traffic signal at the end of an exit ramp in Danbury, the defendant drove his car along the right side of the victim's car. The defendant got the victim's attention and referenced the road rage incident that occurred several weeks prior. It was at this time that the victim saw that the defendant was holding a gun. When the signal turned green, the defendant started shooting as the victim tried to drive away. The defendant fired the gun at least three times. The gunshots hit a front tire, a back tire and the leaf spring of the victim's car." State v. Vallejo, supra, 102 Conn.App. 630.
As for the facts underlying the petitioner's convictions in docket number CR02-0116400 (the Blockbuster case), they are as follows. "On November 12, 2002, an off duty Danbury police officer, Kevin Zaloski, saw the defendant, with a friend, inside a Blockbuster video store. Zaloski recognized the defendant and called the police station to verify that there were warrants for his arrest. After the existence of the warrants was verified and additional officers were dispatched to the store, the defendant was arrested. During the search of the defendant incident to arrest, the police officers found a bag of marijuana, an electronic scale, a large amount of cash in his wallet and a set of car keys. When the police officers informed the defendant's friend, Patricia Rodriguez, that she was free to leave, she told the officers that her purse was still in the vehicle. Detective James Fisher asked the defendant for permission to retrieve the purse and to search the vehicle. The defendant gave the police officers limited permission to go into the vehicle to retrieve the purse, but he claimed that he could not give them permission to search the vehicle because the vehicle belonged not to him but to a friend. When Fisher and Rodriguez retrieved the purse from the car, Fisher also took the registration from the vehicle to determine the owner of the vehicle. Once Fisher determined that Amy DeLoughy was the registered owner of the vehicle, he attempted to contact her to obtain her consent to search the vehicle. Fisher sent another officer to DeLoughy's place of employment and to her residence. That officer was unable to locate DeLoughy, but obtained a cellular telephone number and left several messages. After exhausting his attempts to locate DeLoughy, Fisher decided to bring the vehicle back to the police department as he awaited consent to search. Because tow trucks were busy with other vehicles, Fisher directed Officer James Hicks to drive the car to the police department. When Hicks stepped into the vehicle, he stepped onto a gun that was on the driver's side floor." State v. Vallejo, supra, 102 Conn.App. 630-31.
Additional facts will be discussed as necessary.
DISCUSSION
In his amended petition, the petitioner alleges that Attorney Neary rendered ineffective assistance by (1) prematurely including issues in the habeas petition prior to a decision regarding whether the petitioner's appellate rights would be restored, (2) failing to present evidence with respect to any counts of the habeas petition other than the count regarding the petitioner's appellate rights and (3) failing to withdraw, without prejudice and pending appeal, the counts or portions of the habeas petition that included the claims that petitioner's trial counsel was ineffective with respect to the motion for joinder and the motion for suppression. In his pretrial brief, the petitioner further refined his claims of ineffective assistance against Attorney Neary by arguing that he rendered ineffective assistance (1) by failing to present any evidence regarding Attorney Lafferty's failure to properly argue the petitioner's motion to suppress and to object to the trial court improperly assuming the role of the prosecution during the hearing on the motion to suppress and (2) by failing to present any evidence regarding Attorney Lafferty's failure to object to the joinder of the cases pending against the petitioner for trial.
"[A] person convicted of a crime is entitled to seek a writ of habeas corpus on the ground that his attorney in his prior habeas corpus proceeding rendered ineffective assistance." (Internal quotation marks omitted.) Anderson v. Commissioner of Correction, 114 Conn.App. 778, 795, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009). "To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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). "[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding . . . [T]he petitioner will have to prove that . . . the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . . Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, [842] 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective." (Citation omitted; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 394, 966 A.2d 780 (2009).
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant 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 defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." (Citations omitted; internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 689. "[T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment . . ." (Citation omitted.) Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002).
I. Prematurely Raising Claims in the First Habeas Petition
Before addressing the petitioner's claims against Attorney Neary for his handling of the claims of ineffective assistance of counsel relating to the joinder and suppression issues, it is necessary to briefly address the petitioner's claims that Attorney Neary prematurely brought these claims and that he should have withdrawn them without prejudice prior to the habeas trial. Attorney Neary testified at the habeas trial that he had handled approximately seventy habeas cases and had tried between twelve and twenty-four by the time he represented the petitioner. At the time that he represented the petitioner in the habeas matter, he was a public defender. He explained that it was the policy of the public defender's office for all nonfrivolous claims to be raised in a single habeas petition as opposed to raising them in a piecemeal fashion. Attorney Neary testified that he unsuccessfully attempted to negotiate an agreement with the respondent to have the petitioner's appellate rights restored. The respondent apparently had "zero interest" in any kind of a deal. Attorney Neary further testified that although he has withdrawn claims for lack of evidence, he did not do so in the petitioner's case because he believed that he presented sufficient evidence on all the claims raised in the petition.
Attorney Sandra Crowel, an experienced public defender in the habeas unit, testified at the habeas trial as an expert on behalf of the petitioner. She testified that the public defender's office does not have a policy to the effect that all claims, including those for which there is no evidence, should be raised in a single habeas petition. She explained that all potential claims should be investigated and that a habeas attorney should only raise those claims that are supported by the evidence. If a habeas attorney raises a claim without any supporting evidence, he should withdraw the claim, preferably prior to the habeas trial. Attorney Crowel also testified that bringing habeas claims in a piecemeal fashion is not favored and that it is not unusual for a habeas attorney to seek to restore a petitioner's appellate rights at the same time as bringing other claims of ineffective assistance of counsel.
Attorney Damon Kirchbaum also testified as an expert on behalf of the petitioner. He has handled more than two dozen habeas cases, and more than 50 percent of his practice is devoted to habeas matters. He testified at the habeas trial that piecemeal litigation of habeas matters is frowned upon and that the best practice is to bring all claims in one petition. He also explained that typically appellate rights are restored by a stipulated judgment and then following the direct appeal a petitioner may or may not come back to the habeas court. He described it as a "complex situation" in determining to what extent to pursue other claims when the respondent is not willing to stipulate to a restoration of the petitioner's appellate rights. He further testified that sufficient evidence should be presented on all claims raised in a petition and that if there is no supporting evidence for a particular claim, that claim should be withdrawn prior to trial. Attorney Kirchbaum opined that Attorney Neary should have withdrawn the claims of ineffective assistance of counsel regarding the joinder and suppression issues because according to him, Attorney Neary did not present sufficient evidence on those claims.
"As our Supreme Court has stated, an ineffective assistance claim should be resolved, not in piecemeal fashion, but as a totality after an evidentiary hearing in the trial court where the attorney whose conduct is in question may have an opportunity to testify." (Internal quotation marks omitted.) State v. Abraham, 64 Conn.App. 384, 404, 780 A.2d 223, cert. denied, 258 Conn. 917, 782 A.2d 1246 (2001). Moreover, "[i]t is preferable that all of the claims of ineffective assistance, those arguably supported by the record as well as others requiring an evidentiary hearing, be evaluated by the same trier in the same proceeding. A defendant should not be required to await the outcome of his appeal upon other issues before pursuing his claim of incompetent counsel. If his claim is meritorious, he may often obtain relief in the trial court before his appeal on other issues can be heard, thus mooting such an appeal." State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986).
Although Attorney Neary could have only pursued the claim of ineffective assistance of counsel seeking the restoration of the petitioner's appellate rights and left the other claims of ineffective assistance of counsel for another day, he decided to raise all the nonfrivolous claims that he identified in a single petition. This decision was not objectively unreasonable. As noted supra and as testified to by the petitioner's experts, piecemeal litigation of habeas matters is not favored. In fact, it is even discouraged. See Practice Book § 23-29(3) ("[t]he judicial authority may . . . dismiss the petition, or any count thereof, if it determines that . . . the petitioner presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition"). Attorney Neary was presented with a situation where the respondent apparently refused to agree to the restoration of the petitioner's appellate rights. Since he was going to have to fully litigate that claim it was reasonable for him to also fully litigate his other claims of ineffective assistance of counsel. It was also reasonable for him not to withdraw these claims prior to trial, as he believed he had sufficient supporting evidence to pursue them. In brief, the petitioner has failed to demonstrate that Attorney Neary performed deficiently by pursuing the claims of ineffective assistance of counsel that he did in the first habeas matter.
See Abrams v. Commissioner of Correction, 119 Conn.App. 414, 421, 987 A.2d 371, cert. denied, 295 Conn. 920, 991 A.2d 564 (2010) ("[a] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief").
The petitioner has also failed to demonstrate that pursuing these claims prior to a decision on whether his appellate rights would be restored resulted in any prejudice. There has been no showing of what impact, if any, the result of the direct appeal would have had on the resolution of these claims. Consequently, this claim of ineffective assistance of habeas counsel fails.
II. The Joinder and Severance Issue
The petitioner also alleges in his amended petition that Attorney Neary did not present any evidence regarding the claim, raised in his first petition, that Attorney Lafferty rendered ineffective assistance by failing to object to the joinder of the shooting case and the Blockbuster case for trial and thereafter, to move for their severence.
"The judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together." Practice Book § 41-19; see also General Statutes § 54-57 ("[w]henever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise"). "In Connecticut, joinder of cases is favored." (Internal quotation marks omitted.) State v. James, CT Page 16459 120 Conn.App. 382, 386-87, 991 A.2d 700 (2010). However, "[i]f it appears that a defendant is prejudiced by a joinder of offenses, the judicial authority may, upon its own motion or the motion of the defendant, order separate trials of the counts or provide whatever other relief justice may require." Practice Book § 41-18.
"The decision of whether to sever cases is within the discretion of the trial court . . . and will be overturned only if its discretion has been manifestly abused . . . The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice and that any resulting prejudice was beyond the curative power of the court's instructions." (Citations omitted; internal quotation marks omitted.) State v. Hilton, 45 Conn.App. 207, 213-14, 694 A.2d 830, cert. denied, 243 Conn. 925, 701 A.2d 659 (1997), cert. denied, 522 U.S. 1134, 118 S.Ct. 1091, 140 L.Ed.2d 147 (1998).
"Substantial prejudice does not necessarily result from a denial of severance even [if the] evidence of one offense would not have been admissible at a separate trial involving the second offense . . . Consolidation under such circumstances, however, may expose the defendant to potential prejudice for three reasons: First, when several charges have been made against the defendant, the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate evidence against him . . . Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial . . . [Third] joinder of cases that are factually similar but legally unconnected . . . present[s] the . . . danger that a defendant will be subjected to the omnipresent risk . . . that although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused's guilt, the sum of it will convince them as to all . . .
"Despite the existence of these risks, this court consistently has recognized a clear presumption in favor of joinder and against severance . . . and, therefore, absent an abuse of discretion . . . will not second guess the considered judgment of the trial court as to the joinder or severance of two or more charges . . .
"The court's discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant's right to a fair trial. Consequently, we have identified several factors that a trial court should consider in deciding whether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant's part; and (3) the duration and complexity of the trial . . . If any or all of these factors are present, a reviewing court must decide whether the trial court's jury instruction cured any prejudice that might have occurred." (Citation omitted; internal quotation marks omitted.) State v. Davis, 286 Conn. 17, 28-29, 942 A.2d 373 (2008).
At the habeas trial, Attorney Neary testified that it is difficult to prevail upon the issue of joinder and severance. Nonetheless, he believed that joining the shooting case and the Blockbuster case unduly prejudiced the petitioner because both cases involved a car not owned by the petitioner and a firearm. Accordingly, Attorney Neary identified and raised Attorney Lafferty's failure to object to the joinder of the cases and to thereafter seek to sever them as ineffective assistance of counsel in the petitioner's first habeas petition. As supporting evidence for this claim, he questioned Attorney Lafferty and the petitioner at the first habeas trial regarding the issue of joinder and severance of the petitioner's criminal cases and entered into evidence the transcripts of the petitioner's criminal proceedings. (Petitioner's Exhibits [Exhs.] 19 and 20.) He also filed a pretrial brief thoroughly discussing the issue of joinder and severance and during his closing argument at the habeas trial, he stressed that the petitioner was prejudiced by Attorney Lafferty's failure to object to the joinder of the cases for trial. (Petitioner's Exh. 1; Petitioner's Exh. 20, pp. 38-43.) He did not, however, refer the habeas court, (Fuger, J.), to the relevant portions of the transcripts or challenge Attorney Lafferty's response at the first habeas trial that he believed that he objected to the joinder of the cases by showing him the portion of the transcript from May 21, 2003 where he states, "I have no objection to the joinder." (Petitioner's Exh. 19, pp. 26-28; Petitioner's Exh. 3, p. 2.) Attorney Neary also did not offer any expert testimony regarding the joinder and severance issue.
On this issue, the petitioner presented expert testimony from Attorney Kirchbaum, an expert in habeas corpus matters, as noted supra, and Attorney Tom Ullmann, a highly experienced public defender. Attorney Kirchbaum opined that it was objectively unreasonable for Attorney Neary to have failed to present expert testimony or any evidence on every claim that he raised in the petitioner's first habeas petition, including the claim regarding the joinder of the criminal cases against the petitioner. According to him, it is never sufficient to just introduce the transcripts of the underlying criminal proceedings into evidence.
As for Attorney Ullmann, he opined that Attorney Lafferty not only should have objected to the joinder of the criminal cases against the petitioner for trial but also should have pursued a motion to sever the cases before and during the trial. In his opinion, the prejudice likely to result from joining the cases dictated severance and had Attorney Lafferty strenuously argued for severance the cases would likely have been severed for trial. Although the cases involved separate incidents, Attorney Ullmann feared the jury could use the evidence in the Blockbuster case, specifically the recovered firearm, to convict the petitioner in the shooting case in which no firearm had been recovered and in which the petitioner denied any involvement. He also feared that since the petitioner was implicated as a drug dealer in the Blockbuster case, the jury would likely find the petitioner guilty in the shooting case because of the inference that drugs and guns go hand in hand. Attorney Ullmann further opined that the shooting case involved brutal or shocking conduct because it occurred in broad daylight on a major highway where there were innocent bystanders. In short, he testified that given the likelihood of prejudice resulting from their joinder, Attorney Lafferty had no strategic reason for not objecting to the joinder of the cases pending against the petitioner and for failing to move to sever them. He also testified on rebuttal that it is not a reasonable strategy for an attorney not to object or thereafter move to sever cases joined for trial because he believes they will be tried jointly regardless of any objection or motion to sever, as it is important to preserve the issue for appeal.
As noted by the habeas court, (Fuger, J.), "[t]o submit a transcript and essentially ask the court to engage in a plenary critique of counsel's efforts and to then attempt to find something wrong is a misunderstanding of the role of the habeas court and the burden that rests with the petitioner." Vallejo v. Commissioner of Correction, supra, Superior Court, Docket No. CV 04 0004363. Although Attorney Neary did submit evidence relating to the issue of joinder and severance at the first habeas trial, he did not effectively marshal that evidence, which ultimately led to the habeas court failing to address the issue on the merits. Regardless of whether this constitutes ineffective assistance of counsel, the petitioner's claim fails because he has not met his burden in demonstrating any resulting prejudice. That is, he has failed to establish that there is a reasonable probability that the outcome of the first habeas proceeding would have been different had Attorney Neary more effectively presented the claim of ineffective assistance against Attorney Lafferty for his failure to object to the joinder of the shooting case and the Blockbuster case. Even if Attorney Neary more effectively presented this claim it would have failed for lack of prejudice.
Attorney Lafferty testified at the habeas trial that he considered objecting to the joinder of the shooting case and the Blockbuster case and moving to sever them upon their joinder for trial. At the prior habeas trial, he testified that he did object to their joinder. At the present trial, he testified that he did not formally object to their joinder and suggested that he may have objected during a discussion in chambers. The transcript of the argument on the state's motion for joinder reveals that Attorney Lafferty did not object to the joinder of the cases subject to the trial court's ruling on the motion to suppress. Apparently, if he successfully suppressed the firearm recovered in the Blockbuster case, Attorney Lafferty had no objection to the cases being joined for trial. (Petitioner's Exh. 3, pp. 2-5.) During the trial, the trial court heard the motion to suppress and denied it. (Petitioner's Exh. 4.) Attorney Lafferty did not thereafter move to sever the cases. He testified at the present habeas trial that he did not move to sever the cases because he did not think he would prevail. He stated that the cases had been on the firm trial list for a long period of time. As for objecting on the record or moving to sever the cases merely to preserve the issue for appeal, Attorney Lafferty testified that he was unsure whether he thought about doing this.
Regardless of whether Attorney Lafferty's failure to object on the record to the joinder of the cases and to thereafter move to sever them constitutes deficient performance, the petitioner's claim fails on the prejudice prong. The informations in the present case involved discrete, easily distinguishable factual scenarios. "Factual scenarios that are discrete and easily distinguishable involve different locations, times and witnesses." (Internal quotation marks omitted.) State v. James, supra, 120 Conn.App. 387. The crimes alleged in each information occurred at different times, on different dates and at different locations. The incident in the shooting case occurred during the afternoon on May 8, 2002 at exit 8 on interstate 84 in Danbury. The incident in the Blockbuster case occurred late in the evening on November 12, 2002 at the Blockbuster in Danbury. Although both incidents involved a car either rented or owned by DeLoughy and a gun, the factual scenarios of each clearly were distinguishable. In the shooting case, the petitioner was alleged to be in possession of .357 magnum gun whereas in the Blockbuster case, he was alleged to be in possession of .9 millimeter gun. Additionally, neither incident was so brutal or shocking as to impair the jury's ability to consider the charges against the petitioner in a fair manner. Although the shooting case involved attempted first degree assault and occurred in broad daylight on a public street, no one, including the victim, was injured. Similarly, while "Connecticut courts repeatedly have noted that [t]here is a well established correlation between drug dealing and firearms"; (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 283, 764 A.2d 1251 (2001); this has not militated against joining narcotics charges and firearm charges for trial. See, e.g., State v. Howard, 88 Conn.App. 404, 419-21, 870 A.2d 8, cert. denied, 275 Conn. 917, 883 A.2d 1250 (2005) (upholding joinder of narcotics charge to murder and weapons charges).
Furthermore, the trial was neither lengthy nor complex. There were only three days of testimony and for the most part, the evidence was presented in an orderly fashion. There was some overlapping where one or two witnesses testified concerning both the shooting case and the Blockbuster case. However, this occurred infrequently and likely did not confuse the jury as to relevancy of the evidence to each case. This court recognizes the concerns raised by Attorney Ullmann regarding the potential prejudice that the petitioner was exposed to by having the shooting case and the Blockbuster case joined for trial but "[d]espite the existence of these risks, [the Supreme Court] consistently has recognized a clear presumption in favor of joinder and against severance . . ." (Internal quotation marks omitted.) State v. Davis, supra, 286 Conn. 29. A motion to sever would not have been likely to succeed. The petitioner has not proven that but for Attorney Lafferty's errors there is a reasonable probability that the cases would not have been joined for trial or would have thereafter been severed. Nor has he proven that he would have fared any better if the cases were tried separately. "To mount a successful collateral attack on his conviction, a [petitioner] must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal." (Internal quotation marks omitted.) Baker v. Commissioner of Correction, 281 Conn. 241, 250-51, 914 A.2d 1034 (2007).
CT Page 16464
III. The Motion to Suppress
Finally, the petitioner alleges that Attorney Neary rendered ineffective assistance by failing to present adequate evidence on the claim that Attorney Lafferty rendered ineffective assistance by failing to properly argue the motion to suppress the gun seized from the car driven by the petitioner in the Blockbuster case. Specifically, he claims Attorney Neary should have presented evidence demonstrating that Attorney Lafferty rendered ineffective assistance by failing to present evidence that there was no basis to either search, seize or inventory the car driven by the petitioner and by failing to object to the court improperly assuming a position of advocacy during the suppression hearing. The evidence that the petitioner alleges should have been presented is evidence that the police did not seize the car keys from the petitioner incident to his arrest and that the Danbury police department did not have an inventory policy that applied to the car driven by the petitioner.In the petitioner's first habeas petition, he claimed that Attorney Lafferty was unprepared to argue the motion to suppress, as demonstrated by his failure to provide the full context in which the Danbury police seized and searched the car driven by the petitioner to the Blockbuster. Attorney Neary testified at the present habeas trial that in litigating the aforementioned claim, he tried to avoid expanding the record because he did not want to give the state another chance to raise the issue of valid consent, which he believed would have made it more difficult, if not impossible, to prove that the motion to suppress would have otherwise been granted but for Attorney Lafferty's errors. He also testified that he did not believe it was pertinent whether the Danbury police department had an inventory policy and that he accordingly did not so inquire. He also declined to call Rodriguez, the petitioner's then girlfriend, as a witness at the first habeas trial because he believed her testimony would be viewed as self-serving and not credited.
Attorney Kirschbaum, the petitioner's expert on habeas matters, testified that it was objectively unreasonable for Attorney Neary to fail to investigate whether the Danbury police had an inventory policy and to fail to call Rodriguez as a witness. He opined that it was critical to have Rodriguez testify because she allegedly had the car keys and permission to drive the car. As for her relationship with the petitioner, Attorney Kirschbaum acknowledged that theoretically Rodriguez could be biased as the petitioner's then girlfriend but maintained that she should have testified.
At the first habeas trial, Attorney Neary elicited testimony from the petitioner, DeLoughy and Attorney Jowdy, the petitioner's first trial counsel, that contrary to Detective Fisher's testimony during the suppression hearing, the petitioner did not identify the car that he had driven to the police for purposes of allowing them to retrieve Rodriguez's bag and that the police had walked around the parking lot with the car keys until they found the car. (Petitioner's Exh. 19, pp. 45-46; Petitioner's Exh. 20, pp. 6, 19-20.) He argued to the habeas court that the Danbury police had no reason to impound the car because it did not belong to the petitioner, the arrestee, and because it could have simply been left where it was or driven off by Rodriguez. (Petitioner's Exh. 20, pp. 39-40.) With respect to this claim, the habeas court, (Fuger, J.), held: "It was implied, although not substantiated with any eyewitness personal testimony, that the police officers walked around a parking lot with a key they had seized from the petitioner in a search incident to arrest until they found the car to which the key belonged. They then are alleged to have used the key to open and search the car. This is an insufficient basis upon which to order habeas relief." Vallejo v. Commissioner of Correction, supra, Superior Court, Docket No. CV 04 0004363.
Despite his efforts, Attorney Neary was unable to demonstrate that Attorney Lafferty rendered ineffective assistance in his handling of the motion to suppress. Regardless of whether Attorney Neary performed deficiently in litigating this claim, the petitioner's claim of ineffective assistance of counsel against Attorney Neary fails for lack of a showing of prejudice. The petitioner has not demonstrated that there is a reasonable probability that the claim against Attorney Lafferty would have been successful if Attorney Neary had presented evidence that (1) Attorney Lafferty failed to present evidence that the police did not seize the keys from the petitioner incident to his arrest and that the Danbury police department did not have an inventory policy applicable to the petitioner's car and (2) that Attorney Lafferty should have objected to the trial court assuming a role of advocacy during the suppression hearing. To prevail on this claim, "the underlying motion [to suppress] must be shown to be meritorious, and there must be a reasonable probability that the verdict would have been different if the evidence had been suppressed." (Internal quotation marks omitted.) Williams v. Commissioner of Correction, 120 Conn.App. 412, 428, 991 A.2d 705, cert. denied, CT Page 16466 295 Conn. 915, 297 A.2d 915 (2010).
Attorney Lafferty testified at the present habeas trial that he had spoken to both Rodriguez and DeLoughy and that he had determined that their testimony at the suppression hearing was not necessary and therefore, did not call them as witnesses. He did not think that either had much to add, as the petitioner testified at the hearing that he had permission to use the car from DeLoughy and that he gave the keys to Rodriguez immediately prior to his arrest. Attorney Lafferty could not recall whether Rodriguez specifically told him that the petitioner gave her the keys prior to his arrest. He explained that he believed he had sufficient evidence to demonstrate that the search of the car was not incident to the petitioner's arrest and that there was no reason for the police to move the car. As for the trial court's questioning of Detective Fisher, Attorney Lafferty testified that he did not object because he believed the questions were for clarification purposes and he did not want to draw the ire of the court.
Attorney Ullman, the petitioner's expert in criminal defense, testified that the doctrine of inevitable discovery came up improperly during the hearing on the motion to suppress, as the trial court intervened and raised this issue on its own. He opined that Attorney Lafferty's failure to object to the court's intervention was objectively unreasonable. He further opined that Attorney Lafferty should have sought a continuance at that point to inquire into whether the Danbury police department had an inventory policy. If it did not then he could have used that information to impeach Detective Fisher's testimony. Attorney Ullman also testified that Attorney Lafferty had no tactical reason for failing to call Rodriguez or DeLoughy as witnesses at the suppression hearing. Rodriguez could have testified that the petitioner gave her the car keys prior to his arrest whereas DeLoughy could have testified that the petitioner had permission not only to use the car himself but also to lend it to others. This testimony, according to Attorney Ullman, could have been used to impeach the testimony of the police officers. On cross-examination, he acknowledged that he did not have an opportunity to assess the credibility of either Rodriquez or DeLoughy.
"Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial." (Internal quotation marks omitted.) Conde v. Commissioner of Correction, 112 Conn.App. 451, 458, 963 A.2d 1007 (2009). In the present case, Attorney Lafferty explained that he spoke with both Rodriguez and DeLoughy but decided not to call them as witnesses because he did not believe their testimony would be particularly helpful. Despite Attorney Lafferty's history of professional discipline, this court credits his testimony regarding decisions he made regarding representation here. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005). The petitioner has not met his burden in showing that Attorney Lafferty's failure to call either Rodriguez or DeLoughy was objectively unreasonable nor has he met his burden in showing that this failure resulted in any prejudice.
At the present habeas trial, the petitioner entered numerous grievance committee decisions into evidence, demonstrating that Attorney Lafferty has been reprimanded on more than one occasion for unethical professional conduct. See Petitioner's Exhs. 25-28.
Rodriguez testified at the present habeas trial that the petitioner gave her the car keys right before a police officer arrested him and that subsequent thereto, a plain clothes police officer took the keys out her hands without saying a word. She did not say anything when the plain clothes police officer took the keys from her. She further testified that she could not identify the car that they had driven to the Blockbuster and that the police officers walked around the parking lot, trying the keys in different cars. At some point, she asked for her handbag, which was located inside the car. The officers eventually found the car and retrieved her handbag. She also testified that she and the petitioner were on a first date that night. She later changed that testimony, testifying that they had been on a couple of dates prior to that night. They "split up" about two and a half years ago, after the petitioner's criminal trial and first habeas trial. This court does not find Rodriguez to be credible and accordingly, does not credit her testimony.
DeLoughy testified at the habeas trial that she loaned her car to the petitioner and gave him permission to loan it to friends. She also testified that she only consented to a search of her car after the police informed her that a gun had been found inside it and that the police had also informed her that they had walked all around the Blockbuster parking lot until they found the car. She further testified that she is the petitioner's present girlfriend. The petitioner similarly testified at the habeas trial that DeLoughy had given him permission to loan her car to his friends and that Rodriguez had permission to drive the car on the night of his arrest.
Neither the testimony of Rodriguez or DeLoughy would have been particularly helpful to the petitioner in the prosecution of his motion to suppress. During the motion to suppress, the petitioner testified that he gave the car keys to Rodriguez prior to his arrest and that a police officer took them from her. (Petitioner's Exh. 15, pp. 194-97.) On cross-examination, he testified that he told Rodriguez "not to say what car [they] were in." (Petitioner's Exh. 15, p. 200.) He also denied giving the police permission to go into the car to get Rodriguez' purse. (Petitioner's Exh. 15, p. 200.) Officer Kevin Zaloski, the off duty police officer who spotted the petitioner at the Blockbuster and assisted in his arrest, testified at the criminal trial that car keys had been found on the petitioner. (Petitioner's Exh. 15, p. 148.) Even though he did not testify at the suppression hearing, his testimony was considered "as part and parcel to the motion to suppress." (Petitioner's Exh. 15, p. 190.) Based on the above, this court is hard pressed to find that the testimony of Rodriguez or DeLoughy would have changed the outcome of the motion to suppress. Their credibility is questionable, and there is no evidence that the petitioner or Rodriguez told the police officers that Rodriguez had permission to drive the car. In any event, as testified to by Detective Fisher at the habeas trial, he could not turn the car over to Rodriguez, as he only had the authority to turn it over to the rightful owner. It is conceivable the officer, his department, or the governmental entity that employed both might be subject to a claim for money damages if the vehicle was relinquished to someone other than the rightful owner or was left abandoned in the parking lot where it could be the subject of mischief or destruction. Moreover, there has been no showing that there is a reasonable probability that evidence of the alleged invalidity of DeLoughy's consent would have changed the outcome of the motion to suppress.
As for the claim that Attorney Lafferty should have objected to the trial court's alleged assumption of a role of advocacy during the suppression hearing, the petitioner has failed to demonstrate that this constitutes deficient performance. This claim turns almost primarily on whether there is merit to the petitioner's allegation that the trial court assumed a role of advocacy during the suppression hearing.
"`Under the Anglo-American adversary trial system, the parties and their counsel have the primary responsibility for finding, selecting, and presenting the evidence. However, our system of party-investigation and party-presentation has some limitations. It is a means to the end of disclosing truth and administering justice; and for reaching this end the judge may exercise various powers.' United States v. Karnes, 531 F.2d 214, 216 n. 1 (4th Cir. 1976); see also Practice Book § 42-39 (judicial authority, sua sponte, may appoint expert witness)." State v. Peloso, 109 Conn.App. 477, 490-91, 952 A.2d 825 (2008). "Thus, when it clearly appears to the judge that for one reason or another the case is not being presented intelligibly to the [finder of fact], the judge is not required to remain silent. On the contrary, the judge may, by questions to a witness, elicit relevant and important facts . . . Such interventions may be necessary, for example, to resolve doubts as to the admissibility of certain evidence, to restrain a garrulous witness or to clarify questions that the witness may not understand . . . A trial judge's intervention in the conduct of a criminal trial would have to reach a significant extent and be adverse to the defendant to a substantial degree before the risk of either impaired functioning of the [finder of fact] or lack of the appearance of a neutral judge conducting a fair trial exceeded constitutional limits." (Citations omitted, emphasis added; internal quotation marks omitted.) Id., 491-92. "Whether or not the trial judge shall question a witness is within his sound discretion . . ." (Internal quotation marks omitted.) State v. Iban C., 275 Conn. 624, 652, 881 A.2d 1005 (2005).
During the motion to suppress, before cross-examination, the trial court asked Detective Fisher some questions. (Petitioner's Exh. 15, pp. 219-21.) On direct examination, Detective Fisher testified that he instructed Detective Hicks to drive the car to the "Evidence Garage at the police department" and to "secure it, so [they] could have it at a secure location . . ." (Petitioner's Exh. 15, p. 216.) Following up on that, the trial court asked Detective Fisher the purpose of taking the car to the Evidence Garage and "what, if anything, is done" there. (Petitioner's Exh. 15, p. 219-20.) Detective Fisher testified that pursuant to normal procedures an inventory of the car would have been done. (Petitioner's Exh. 15, 220-21.) After questioning Detective Fisher, the trial court gave both parties an opportunity to "follow up." (Petitioner's Exh. 15, 221.) On cross-examination, the petitioner introduced the car inventory into evidence. (Petitioner's Exh. 15, 226; Petitioner's Exh. 24.) The trial court ultimately used this evidence and Detective Fisher's testimony regarding the police department's normal procedure of inventorying cars brought back to the Evidence Garage to deny the petitioner's motion to suppress. (Petitioner's Exh. 242-44.) Contrary to the petitioner's assertion, the trial court did not sua sponte raise the doctrine of inevitable discovery. The prosecution argued that the doctrine of inevitable discovery applied, albeit on different grounds than the trial court ultimately found. (Petitioner's Exh. 15, 234.)
The trial court's questioning of Detective Fisher is not reflective of advocacy but indicative of eliciting relevant facts to resolve any doubts as to the admissibility of the gun found in the car driven by the petitioner to the Blockbuster, which is permissible. Notably, there is no indication that the trial court knew how Detective Fisher was going to respond to his questions. It merely was following up on testimony elicited during direct examination. In short, the colloquy did not cause the trial court to assume the role of advocate. Accordingly, Attorney Lafferty cannot be faulted for failing to object to the trial court's questioning of Detective Fisher, and the petitioner's claim of ineffective assistance of trial counsel on this ground fails.
Similarly, the petitioner's final claim, that Attorney Lafferty rendered ineffective assistance by failing to investigate and present evidence that the Danbury police department did not have a procedure for inventorying cars that applied to the car driven by the petitioner to the Blockbuster, is unavailing.
"It is a basic principle of constitutional law that [t]he fourth amendment to the United States constitution, made applicable to the states through the fourteenth amendment, prohibits unreasonable searches and seizures by government agents. A warrantless search and seizure is per se unreasonable, subject to a few well-defined exceptions." (Internal quotation marks omitted.) State v. Vallejo, supra, 102 Conn.App. 638. If none of the exceptions apply, evidence discovered may nonetheless be admissible pursuant to the inevitable discovery doctrine. "Under the inevitable discovery rule, evidence illegally secured in violation of the defendant's constitutional rights need not be suppressed if the state demonstrates by a preponderance of the evidence that the evidence would have been ultimately discovered by lawful means . . . To qualify for admissibility the state must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation." (Internal quotation marks omitted.) Williams v. Commissioner of Correction, supra, 120 Conn.App. 430.
At the habeas trial, Detective Fisher testified that upon identifying the car driven by the petitioner to the Blockbuster, the police attempted to contact the owner of the car, DeLoughy. After attempts to contact her proved unsuccessful, he instructed Detective Hicks to drive the car to the police station to secure it while they sought either consent or a warrant to search the car. He explained that it was standard procedure to take custody of cars while attempting to get either consent or a warrant to search them. He further explained that it is discretionary how they get the car to the police station. They can use a tow or bring it in themselves. He testified that his department, the Special Investigation Department, typically brings cars taken into custody to the station themselves. That particular night it was rainy, the tow companies were busy and Detective Fisher did not want to unnecessarily tie up an officer by assigning one to watch the car in the parking lot. Consequently, he had Detective Hicks drive the car to the police station. When Detective Hicks got into the car, he testified at the habeas trial, that he stepped on the gun. He did not search the car upon his entry. Detective Fisher instructed him to put the gun in a safe location and drive the car to the evidence barn. Once at the evidence barn, Detective Fisher unequivocally testified, that pursuant to standard operating procedures the car would be inventoried. He identified Respondent's Exhibit F, General Order 90-4, as the inventory policy that was in effect at the time of the incident and testified that it applied in the petitioner's case.
General Order 90-4 is addressed to all Danbury police officers and provides in relevant part: "Vehicles involved in incidents listed below or when criminal arrests are effected relative to same, shall be towed to and inventoried at the Danbury Police Department." Those incidents listed are: "[m]ajor felonies, [w]eapons possession, [d]rugs, [b]urglaries, etc." The stated "two-fold purpose" of General Order 90-4 is (1) "[t]o safeguard the defendant's property" and (2) "[t]o protect the Officer and City of Danbury from groundless claims arising from reports of lost possessions." (Respondent's Exhibit F.) Sergeant John Krupinsky testified at the habeas trial that he recalled General Order 90-4 being in existence at the time of the incident in the Blockbuster case and that it applies to any vehicle impounded by the police. On cross-examination, he explained that upon promotion to sergeant, the chief appointed him to interpret policies, as it is the interpretation of the supervisor that controls. The petitioner argues that this court should not rely on Sergeant Krupinsky's testimony regarding General Order 90-4 because he is not in charge of the police department's records division and because Captain Tom Wendell, who is in charge of the records division, did not produce General Order 90-4 in response to the petitionner's subpoena. The policies he did produce are irrelevant to the present case. (Petitioner's Exhs. 10 and 11.) This court finds that Captain Wendell's failure to produce General Order 90-4, although inexplicable, is not fatal to the respondent's case.
This court further finds that General Order 90-4 is applicable to the petitioner's case. At the habeas trial, Attorney Ullman, on rebuttal, opined that General Order 90-4 only applies to vehicles directly involved in the crimes listed. He further opined that the order does not apply in the petitioner's case because the car was not involved in any criminal activity. This court respectfully disagrees. In a search incident to the petitioner's arrest, the police found a bag of marijuana, an electric scale, several plastic bags, $1,226 and car keys in the petitioner's possession. (Petitioner's Exh. 15, pp. 146-48.) Initially, the petitioner refused to tell the police officers which car he had driven to the Blockbuster; however, after Rodriguez requested her handbag, he identified the car and gave the police officers limited permission to enter the car to retrieve her handbag. Even though the car was not involved in a police chase or under police surveillance, it is not a leap, under the circumstances, to infer that the car was in some way related to criminal activity, as the police found drugs, drug paraphernalia, a scale and cash indicative of drug selling and car keys in the petitioner's possession.
Furthermore, regardless of whether General Order 90-4 applies in the petitioner's case, Detective Fisher testified that he followed department procedure in having the petitioner's car taken to the police station. As noted by the Appellate Court in the petitioner's direct appeal, "the police, having arrested the [petitioner], created the situation in which the car would be parked in the lot for hours or even potentially overnight." State v. Vallejo, supra, 102 Conn.App. 641. "In the performance of their community caretaking functions, the police are frequently obliged to take automobiles into their custody." (Internal quotation marks omitted.) State v. Whealton, 108 Conn.App. 172, 179, 947 A.2d 965, cert. denied, 288 Conn. 909, 953 A.2d 655 (2008). Although the petitioner argues it was not necessary for the police to bring the car to the police station, as it was lawfully parked in a parking lot where there were several businesses, including a restaurant that did not close until the early hours of the morning, "[t]he real question is not what could have been achieved, but whether the [f]ourth amendment requires such steps . . . the reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative less intrusive means." (Internal quotation marks omitted.) State v. Nelson, 17 Conn.App. 556, 573, 555 A.2d 426 (1989) (rejecting claim that impoundment and inventory search of car unreasonable because defendant should have been allowed to make other arrangements to tow his car to his residence). Under the circumstances present in the petitioner's case, the decision to secure the car by bringing it to the evidence garage while continuing to try to contact DeLoughy was reasonable.
Similarly, regardless of whether General Order 90-4 applies to the petitioner's case, Detective Fisher testified that upon being brought to the evidence garage, pursuant to standard procedure, the car would have been inventoried. "An inventory search is a well-defined exception to the warrant requirement." (Internal quotation marks omitted.) State v. Whealton, supra, 108 Conn.App. 179. " United States v. Opperman, [ 428 U.S. 364, 366, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)], mandates that an inventory search be conducted using a standard inventory form pursuant to standard police procedures. The reason for requiring such procedures is to avoid arbitrary determinations by police with respect to an inventory search. Id., 383. While it is clear that a search must be conducted according to established procedures, neither Opperman, nor any subsequent case, expressly requires such procedures to be written." (Internal quotation marks omitted.) State v. Nelson, supra, 17 Conn.App. 573.
Based on the above, the petitioner has failed to demonstrate that but for Attorney Lafferty's failure to investigate into whether the Danbury police had an inventory policy, his motion to suppress would have been meritorious. The trial court held that the inevitable discovery doctrine applied as the gun would have been found when the car was inventoried at the police station pursuant to standard procedures. (Petitioner's Exh. 15, pp. 239-45.) The petitioner has not presented any credible evidence demonstrating that the inevitable discovery doctrine would not apply, as held by the trial court, in his case.
CONCLUSION
Based on the foregoing, the petition for a writ of habeas corpus is denied. Judgment may enter in favor of the respondent. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.