Opinion
No. CV05-4000584
January 20, 2011
Memorandum of Decision
The petitioner has filed a petition for a writ of habeas corpus attacking his 1996 convictions for murder, arson in the first degree, tampering with physical evidence, and risk of injury to a child. For the following reasons, the petition is denied.
Trial of this habeas case took ten days. The court benefitted greatly from the professionalism of habeas counsel for both sides and the thorough pretrial memorandum filed by counsel for the respondent.
I
The opinion of the Supreme Court set forth the facts that the jury could reasonably have found at trial. "On November 19, 1994, at approximately 3:19 a.m., Ronald McClain and Sheila McClain, neighbors who lived across the street from the defendant [on Hillside Avenue in Plymouth], awoke to screams from the defendant's children. Ronald McClain observed an orange glow coming from the left side of the [defendant's] house. He also observed the defendant's two children on the roof of the front porch, a ladder against the front porch and the defendant standing at the bottom of the ladder. [Ronald] McClain called 911 and went downstairs to let the [defendant and his children] into [McClain's] home. The children were screaming that their house was on fire and that they could not find their mother [Wendy Wargo] . . . The defendant stated that his wife was in the house, that he could not get her out and that he did not know if she had come home. The children remained at the McClain home while the defendant and Ronald McClain returned to the burning house. The defendant again stated that he did not know if his wife had come home that evening.
"The firefighters arrived a few minutes later and found the defendant outside the house, confused and attempting to put water on the fire with a garden hose. The defendant told the firefighters that he did not know his wife's whereabouts. Later, the defendant, while he pointed to the den, told fireman Frederick Telke, `Yes, she's in here, she's in here.' When asked if he was sure, the defendant walked to the driveway and pointed to his wife's car.
"Firefighters entered the home and approached the den, where the fire was concentrated, but were unable to remain due to the high temperatures, heavy smoke and unstable floor. The body of the victim . . . was later found in this area. Firefighters also entered the second floor of the house and found only smoke damage. They did not hear any smoke detector alarms.
"Several hours later, Officer Gerald Allain of the Plymouth police department questioned the defendant. The defendant stated that the victim smoked cigarettes and that he recalled the smoke alarms going off. He stated that the thick smoke forced him to his knees [and that] he took the children to the porch roof.
"On November 19, 1994, the defendant gave a signed, written statement to the police. He indicated that the victim slept on the couch because their marriage was `on the rocks.' That same day, the defendant told the victim's uncle, James Castiola, that he knew what had happened. He stated that the victim had come home, and had lain down on the couch, [near] approximately fifty videotapes. While on the couch, the victim had lit a cigarette and had fallen asleep. The defendant told Castiola that the fire had been accelerated by the videotapes, which cannot be put out when they catch fire.
"State Trooper Kevin McGurk was assigned to determine the cause and origin of the fire. He examined the Wargo home the following morning and determined that the fire originated in the den. McGurk discovered a pour pattern leading up to the area of origin, which indicated that an accelerant had been used. On the basis of his observations, McGurk concluded that the fire had been intentionally set. Other officers executed a search warrant on the Wargo home and retrieved an empty bottle of bleach from the basement and a can of acetone from the storage shed. Joseph Cristino, a forensic analysis engineer, examined the two smoke detectors retrieved from the Wargo home. [Cristino found that it was `highly improbable' that the first floor smoke detector was working at the time of the fire and that, had the battery been connected to the second floor detector, there was a high probability that it would have worked at the time of the fire.]
"A notebook also was seized from the defendant's bedroom dresser. The parties stipulated that the notes contained therein were written in the defendant's handwriting. The defendant was a member of the fire brigade at work and had received training in chemical fires and hazardous materials. The defendant was familiar with spontaneous combustion caused by the combination of alkalis and acids. The defendant admitted writing various phrases in the notebook, such as `lock box in shed,' `tool box,' `acetone,' `alcohol clorox,' `alm foil,' `dry run,' `rope kds drs,' `straps,' `pillow,' `oil in can,' `rid of stuff,' `glvs,' `hat,' `shirt,' `cigs,' and `ldr.' The defendant stated that these abbreviations could have been a camping list, but that he did not know why he wrote these abbreviations." (Internal quotation marks and footnote omitted.) State v. Wargo, 255 Conn. 113, 117-19, 763 A.2d 1 (2000).
At the criminal trial, attorney M. Hatcher Norris represented the petitioner. After the verdict, the trial court, Mulcahy, J., imposed a net effective sentence of fifty years. The Appellate Court affirmed; State v. Wargo, 53 Conn.App. 747, 731 A.2d 768 (1999); and the Supreme Court affirmed on certified appeal. State v. Wargo, supra, 255 Conn. 113.
The petition alleges that, between 2000 and 2005, the petitioner filed several other habeas petitions and a petition for a new trial, none of which went to the merits. The petitioner filed the present petition in 2005. There is no activity in the file between 2005 and 2008. The delayed commencement and lethargic movement of this case is contrary to society's "need for finality of convictions." (Internal quotation marks omitted.) Young v. Commissioner of Correction, 104 Conn.App. 188, 192, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008). See also General Statutes § 52-470(a) (the "court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts or issues of the case . . .").
II
The petitioner's first claim is one of actual innocence. "[T]he proper standard for evaluating a freestanding claim of actual innocence . . . is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty of the crime." (Internal quotation marks omitted.) Sargent v. Commissioner of Correction, 121 Conn.App. 725, 734, 997 A.2d 609, cert. denied, 298 Conn. 903, 3 A.3d 71 (2010). In addition, under binding Appellate Court case law, "[a] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered . . . This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Internal quotation marks omitted.) Id. at 734-35.
In this case, the petitioner offered no newly discovered evidence, as our case law defines that phrase. Accordingly, the petitioner's actual innocence claim must fail. Id.
In addition, the petitioner did not prove by clear and convincing evidence that he is actually innocent. Even the petitioner's experts concluded that the cause of death and the cause of the fire should remain undetermined. Thus, the evidence is not clear and convincing that the victim died on her own accord and that the fire was accidental.
III
The petitioner's second claim alleges that his right to due process and a fair trial was violated because the expert testimony of Malka Shah, the state's medical examiner, and Kevin McGuirk, the state fire marshal and cause and origin expert, was materially false and unreliable. It is difficult to decipher this claim. The petitioner does not allege, nor was there any evidence, that the state knowingly presented or failed to correct false testimony. See Merrill v. Warden, 177 Conn. 427, 431, 418 A.2d 74 (1979) (citing Napue v. Illinois, 360 U.S. 264 (1959); and Giglio v. United States, 405 U.S. 150 (1972)). Instead, the petitioner relies on Ortega v. Duncan, 333 F.3d 102 (2d Cir. 2003), a Second Circuit case holding that habeas relief is available when there is newly discovered evidence — in that case a recantation — that a government witness presented materially false or perjured testimony at trial. Id., 108-09.
Connecticut has not adopted the Ortega rule. There is little reason to do so. If a habeas petitioner presents newly discovered evidence that is material to the finding of guilt, then the courts can evaluate his claim as one for actual innocence. See Sargent v. Commissioner of Correction, supra, 121 Conn.App. 734-35. In the present case, however, the petitioner, as noted, has not offered any newly discovered evidence under the prevailing definition. In any event, the petitioner does not present evidence of any materially false testimony, such as a witness recanting on an issue of fact. Rather, the petitioner presents only different experts who disagree with the experts who testified at the criminal trial on matters of opinion such as the cause of the fire and the cause of death. There is no reason or authority for granting habeas relief solely on that basis, lest habeas become simply an opportunity for a prisoner to retry his case using different experts. The court accordingly denies the due process claim.
In Lewis v. Commissioner of Correction, 116 Conn.App. 400, 409-12, 975 A.2d 740, cert. denied, 294 Conn. 908, 982 A.2d 1082 (2009), the court held that there is no cause of action in habeas for a freestanding claim that a government witness committed perjury. In doing so, the court distinguished Ortega primarily because the petitioner before it had not made any showing that the allegedly perjured testimony was material. Id., 412 n. 9.
The state alleges that, because the petitioner did not raise the due process claim on direct appeal, it is procedurally defaulted and there is no cause or prejudice to justify overlooking the default. See Henderson v. Commissioner of Correction, 104 Conn.App. 557, 569, 935 A.2d 162 (2007), cert. denied, 285 Conn. 911, 943 A.2d 470 (2008). However, because the claim depends on evidence outside the trial record, the petitioner had cause to raise it for the first time on habeas. Nevertheless, as stated above, the claim fails to state a cause upon which relief can be granted.
IV
One of the petitioner's principal arguments is that attorney Norris was ineffective because he had a conflict of interest in representing the petitioner on both a fire insurance claim and his criminal defense. This argument has two temporal components: Norris's representation prior to the initiation of formal charges against the petitioner, and his representation thereafter.
The court finds the following related facts. On or about November 21, 1994, two days after the fire, the petitioner, on his own, filed a claim under his homeowner's insurance for fire damage. The next day the petitioner retained attorney Martin Gold for representation in both the criminal investigation of the fire and the petitioner's insurance claim. Within several weeks, Norris, of the same firm of Butler, Norris Gold, became lead counsel on both matters. During this time, the petitioner entered into a contingency agreement with the law firm that provided for the firm to receive a certain percentage of the proceeds of any insurance recovery.
Norris had significant experience in trying arson and murder cases. Earlier that year, he was lead counsel in the landmark trial of State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058 (1998), an arson case in which our Supreme Court later held that a trial court should consider the validity of the methodologies underlying proffered scientific evidence in determining the admissibility of that evidence. Norris was board certified nationally both as a criminal and a civil trial advocate.
After the petitioner's criminal trial, Norris became lead counsel in the Porter appeal to the Supreme Court.
Norris thoroughly and repeatedly advised the petitioner of the risks of going forward with the insurance claim. In particular, Norris informed the petitioner that, to maintain his claim, he would have to give a statement to the insurance company under oath and allow the company to inspect his property, and that anything the petitioner said or provided could be shared with the state and admitted in any future criminal trial. Although Norris did not specifically instruct or advise the petitioner not to pursue the insurance claim, Norris did inform him that it was not in his best interests to do so, and that ordinarily he would not permit any client under investigation for a crime to speak to anyone other than his lawyer.
The petitioner was adamant, however. He strongly maintained his innocence and insisted on pursuing his insurance claim. Norris did not see any conflict of interest because in both matters the petitioner sought to establish his innocence. Accordingly, at his client's request, Norris notified the insurance company that it could inspect the petitioner's house and conduct an examination of the petitioner under oath. The insurance company accomplished these matters between late November 1994 and February 1995.
During its inspection, the insurance company discovered the notebook that contained the petitioner's writings. The company asked the petitioner about it during the examination under oath. In late 1994 and early 1995, the company turned over all items it obtained from its inspection, as well as transcripts of the examination under oath, to the state fire marshal's office, at the latter's request pursuant to General Statutes § 38a-318.
The language of the pertinent parts of General Statutes § 38a-313 at the time provided as follows: "(a) Any authorized agency may in writing request any insurance company to release information relative to any investigation it has made concerning a loss or potential loss due to fire of suspicious or incendiary origin which shall include but not be limited to: (1) An insurance policy relative to such loss, (2) policy premium records, (3) history of previous claims, and (4) other relevant material relating to such loss or potential loss.
"(b) If any insurance company has reason to suspect that a fire loss to its insured's real or personal property was caused by incendiary means, the company shall furnish any authorized agency with all relevant material acquired during its investigation of the fire loss, cooperate with and take such action as may be requested of it by the authorized agency and permit any person ordered by a court to inspect any of its records pertaining to the policy and the loss. Such insurance company may request any authorized agency to release information relative to any investigation it has made concerning any such fire loss of suspicious or incendiary origin." See State v. Smith, 40 Conn.App. 789, 794-95 n. 7, 673 A.2d 1149, cert. denied, 237 Conn. 915, 675 A.2d 886, cert. denied, 519 U.S. 873 (1996). The language of the statute is the same today.
The petitioner was arrested on March 7, 1995. The petitioner entered into a new retainer agreement with Norris for the criminal case. Meanwhile, the insurance company had not paid the claim as of November 1995, which was shortly before the one-year limitations period would run. Although Norris advised the petitioner against filing suit, the petitioner insisted that he do so. Norris thereupon obtained another contingency fee agreement with the petitioner and filed a timely suit against the insurance company.
Wargo v. St. Paul Guardian Insurance Co., Superior Court, Docket No. CV95-0901196. The pleadings in the habeas case establish that in 2001, after our Supreme Court affirmed the petitioner's conviction, the Superior Court granted summary judgment for the defendant in the insurance case.
The first part of the petitioner's conflict of interest argument is that Norris rendered ineffective assistance of counsel because he had a conflict of interest prior to the petitioner's arrest in handling both the latter's criminal defense and his insurance claim. It is true that "the right to counsel is the right to the effective assistance of counsel." (Internal quotation marks omitted.) Strickland v. Washington, 466 U.S. 668, 686 (1984). The corollary is, however, that the right to effective assistance of counsel attaches only when there is a constitutional right to counsel in the first place. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982). The right to counsel "attaches only at or after the time that adversarial judicial proceedings have been initiated . . ."; Kirby v. Illinois, CT Page 2988 406 U.S. 682, 688 (1972); even when the suspect has privately retained counsel before that time. See Moran v. Burbine, 475 U.S. 412, 428-32 (1986). In Connecticut, the constitutional right to counsel attaches at the time of arraignment. See State v. Stenner, 281 Conn. 742, 757-67, 917 A.2d 28, cert. denied, 552 U.S. 883 (2007). Accordingly, the petitioner had no right to the effective assistance of counsel prior to that time. See Gonzalez v. Commissioner of Correction, 122 Conn.App. 705, 723 n. 3, 1 A.3d 170 (Schaller, J., dissenting), cert. granted, 298 Conn. 918, 4 A.3d 1226 (2010). Accord Wainwright v. Torna, supra, 455 U.S. 587-88; United States v. Alvarez, 142 F.3d 1243, 1250 (10th Cir. 1998); United States v. Latouf, 132 F.3d 320, 330 (6th Cir. 1997). Therefore, there is no reason to examine further the first part of the petitioner's argument.
The petitioner's possible remedies at the time were to file a grievance or a suit for legal malpractice.
The second part of the conflict of interest argument is that Norris rendered ineffective assistance after arraignment because of the conflict he had between the insurance claim, which then became a lawsuit, and the petitioner's criminal defense. There is no dispute that the petitioner had a right to the effective assistance of counsel at that point. Ordinarily, when a petitioner presents a claim of ineffective assistance of counsel, he must meet the Strickland test and show that: (1) his counsel's performance was deficient in the sense that the counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment"; and (2) the deficient performance prejudiced the defense in the sense "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Phillips v. Warden, 220 Conn. 112, 132, 595 A.2d 1356 (1991) (quoting Strickland v. Washington, supra, 466 U.S. 686-94.) In such a case, therefore, the defendant must establish (1) deficient performance, and (2) actual prejudice. Phillips v. Warden, supra, 220 Conn. 132.
For purposes of this analysis, the court considers the petitioner's arraignment to have taken place simultaneously with his arrest.
Although the right to the effective assistance of counsel includes the right to be represented by an attorney free from conflicts of interest; see Id.; a different and more lenient variant of the Strickland test applies to conflict of interest claims. "When the defendant claims that his counsel was burdened by an actual conflict of interest the defendant need not establish actual prejudice. Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance." (Internal quotation marks omitted.) Phillips v. Warden, supra, 220 Conn. 132-33 (quoting Strickland v. Washington, supra, 466 U.S. 692, and Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)).
Even if the court assumed that Norris actively represented conflicting interests, the court does not find the second prong, namely that the conflict of interest "adversely affected his . . . performance." (Internal quotation marks omitted.) Phillips v. Warden, supra, 220 Conn. 133. To prove such a lapse of representation, a defendant must demonstrate that "some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests . . ." (Internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 387, 788 A.2d 1221, cert. denied, 537 U.S. 836 (2002) (quoting United States v. Stantini, 85 F.3d 9, 16 (2d Cir. 1996)). See also Goodrum v. Commissioner of Correction, 63 Conn.App. 297, 318, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001) ("To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another party." (Emphasis in original; internal quotation marks omitted.)
The conclusion that Norris actively represented conflicting interests after arrest is by no means clear. The United States Supreme Court has noted that its decision in Cuyler v. Sullivan, supra, 446 U.S. 335, concerning the right to conflict-free counsel, has been applied "`unblinkingly' . . . to all kinds of alleged attorney ethical conflicts . . ." (Internal quotation marks omitted.) Mickens v. Taylor, 535 U.S. 162, 174 (2002). The present case does not involve the typical situation in which "an attorney adduces evidence or advances arguments on behalf of one defendant that are damaging to the interests of [another] . . . defendant." Phillips v. Warden, supra, 220 Conn. 135-36. Here, given that the petitioner, as will be discussed, opposed entering a guilty plea, the interests of counsel in both the criminal and the insurance case were similarly aligned in that, in both, he sought to establish that the petitioner was not responsible for the fire or the victim's death.
The petitioner posits two ways in which the conflict adversely affected Norris's performance. The first is that Norris failed to move to suppress the results of the examination under oath and the inspection of the house — principally the petitioner's notebook. The petitioner contends that Norris and Gold committed ethical misconduct, due to their conflict of interest, by failing affirmatively to advise the petitioner not to cooperate with the insurance investigation in view of the risk such cooperation posed to the petitioner's criminal defense. Supposedly the ground for a motion to suppress would have been the claim that the state obtained important evidence as a result of this ethical misconduct.
Even assuming that the firm had a conflict of interest prior to arrest in this way, such a conflict presented no basis for Norris to move to suppress the evidence in question. There is no authority in Connecticut for excluding relevant evidence from a criminal trial because of the misconduct or ethical violations of private counsel. Although criminal defendants have on two occasions raised similar claims on appeal, the courts have declined to address them on the merits. See State v. Vinal, 198 Conn. 644, 653-55, 504 A.2d 1364 (1986); State v. Gaines, 36 Conn.App. 454, 460-62, 651 A.2d 1297 (1994). The mere fact that defendants have raised a claim, however, does not mean that there is any merit to it. Indeed, given that the purpose of the exclusionary rule is to deter official misconduct; see United States v. Leon, 468 U.S. 897, 916 (1984); it makes no sense to exclude relevant evidence obtained as a result of ethical violations by private counsel, since there is no official misconduct to deter. Further, in State v. Smith, 40 Conn.App. 789, 673 A.2d 1149, cert. denied, 237 Conn. 915, 675 A.2d 886, cert. denied, 519 U.S. 873 (1996), the Appellate Court decided, just prior to the criminal trial in this case, that an insurance company's entry into a defendant's premises without consent or a warrant, and its provision of the evidence to the state fire marshal pursuant to § 38a-318, constitutes a purely private search that lacks the state action necessary to justify a motion to suppress. Thus, because there would have been no merit to filing a motion to suppress concerning the notebook and the statements, filing a motion to suppress was not a "plausible alternative defense strategy" that Norris might have pursued. State v. Vega, supra, 259 Conn. 387.
In Vinal, the defendant maintained that one defendant in a joint trial obtained a statement from the other defendant in violation of a disciplinary rule in the Code of Professional Responsibility. The Supreme Court declined to review the issue because the appealing defendant had not raised it in the trial court. The Court added, however, that the appellant had cited no authority for the suppression of evidence obtained in violation of a disciplinary rule and "we know of none." State v. Vinal, supra, 198 Conn. 654. Contrary to the petitioner's suggestion, the court does not view the Vinal court's additional statement that the defendant "remains free to pursue this claim on retrial" as a comment on the merits of the claim. Id., 655. In Gaines, the court found no violation of a disciplinary rule and thus did not need to reach the issue of whether ethical violations call for suppression of evidence.
Further, even if a state's attorney had committed the ethical violation, there remains the question of whether the exclusionary rule should apply to ethical as opposed to constitutional violations. See United States v. Abdi, 463 F.3d 547, 556 (6th Cir. 2006) (exclusionary rule does not apply to statutory violations). This question was one that the court did not reach in State v. Gaines, supra, 36 Conn.App. 460-62.
The second area in which a conflict of interest allegedly affected Norris's performance was in plea negotiations. Supposedly, Norris was less likely to seek a favorable plea offer from the state, or persuade his client to plead guilty, because doing so would have diminished the likelihood that the firm would recover a contingency fee in the insurance suit. The petitioner alleges that Norris did not adequately present the strengths and weaknesses of the case to his client, including the possibility of suppressing the notebook and the statements based on counsel's ethical violations.
The petitioner did not prove these allegations. The credible evidence was that Norris relayed the state's offer of forty-five years to serve to the petitioner, talked to the petitioner about a plea, and explained the strengths and weakness of the state's case to him. The petitioner, however, was adamant that he was innocent. He would not enter into a plea agreement and he would not authorize Norris to bargain further with the state. Under these circumstances, and given the stiff sentence that the state was recommending, counsel had no obligation to advise his client to plead guilty. See United States v. Purdy, 208 F.3d 41, 48 (2d Cir. 2000).
There is no validity to the petitioner's additional argument that Norris could not candidly assess and relate the strengths of the state's case because he would have had to suggest that the notebook and statements should be suppressed based on his own misconduct and conflict of interest. To begin with, as discussed, there was no legal basis for such a motion to suppress, and so there was nothing in that regard that Norris had an obligation to tell his client. Furthermore, Norris actually took the step of writing to his client to inform him that he would "vigorously fight" to exclude the notebook at trial as irrelevant because an expert for the state had determined that it did not contain a formula for fire. (Exhibit 63.) Thus, Norris fully apprised the petitioner that a potential weakness of the state's case was the exclusion of the notebook. Given the petitioner's resolute opposition to a plea, however, there was nothing else that Norris could reasonably have done to induce a plea. The court accordingly concludes that any conflict of interest that Norris had did not "adversely [affect the] lawyer's performance." (Internal quotation marks omitted.) Phillips v. Warden, supra, 220 Conn. 132-33.
Norris did in fact object on relevance grounds at trial. (Exhibit (Ex.) C (Sept. 30, 1996), pp. 122-26.)
V
The other principal argument of the petitioner is that attorney Norris rendered ineffective assistance at trial. "To determine whether the petitioner has demonstrated that counsel's performance was ineffective, we apply the two part test established in Strickland v. Washington, [ supra]. Claims of ineffective assistance during a criminal proceeding must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance . . ." (Citations omitted; internal quotation marks omitted.) Jarrett v. Commissioner of Correction, 108 Conn.App. 59, 70, 947 A.2d 395, cert. denied, 288 Conn. 910, 953 A.2d 653 (2008).
"The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the [s]ixth [a]mendment." (Internal quotation marks omitted.) Id. In this regard, "[j]udicial 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." (Internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 512-13, 964 A.2d 1186, cert. denied, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009) (quoting Strickland v. Washington, supra, 466 U.S. 689.)
A
The first category of ineffective assistance claims lodged by the petitioner concerns Norris's handling of the testimony of Dr. Malka Shah. The Supreme Court found the following facts concerning Shah's testimony: "On direct examination, Shah testified about the results of the autopsy that she had performed on the victim. Shah explained that the victim's body had been burned beyond recognition, and that the victim could be identified only by reference to her dental records. Shah further stated that the victim's body was so badly charred that she was unable to conduct an examination of the victim's skin. Shah, however, indicated that she was able to examine the victim's internal organs, including her lungs. Shah stated that, on the basis of her examination of those organs, the victim `definitely' had died prior to the fire. [footnote 7: `Shah explained that the lack of soot in the victim's lungs and larynx and on the victim's tongue, coupled with the low level of carbon monoxide in her blood, led her to conclude that the victim was "definitely dead before the fire." `] Moreover, although Shah testified that she could not determine either the cause of the victim's death or the manner in which she had died, Shah's examination of the victim's internal organs revealed that the victim had not died of natural causes." State v. Wargo, supra, 255 Conn. 119-20.
There is no validity to the petitioner's initial allegation that Norris failed adequately to discredit Shah's testimony at the probable cause hearing. From Norris's testimony, the court concludes that Norris had a valid strategy at the hearing in probable cause in letting the state's witnesses testify fully so that he could get a preview of the state's evidence and lock the state's witnesses into their opinions at the time. In any event, the petitioner could not conceivably be prejudiced by any failure of counsel to prevail at the probable cause hearing if the trial itself and the adjudication of guilt were completely fair. Thus, the court turns to the trial-based claims.
The petitioner's additional complaint that Norris should have moved to exclude Shah's testimony is completely lacking in substance. Shah was a trained medical doctor and pathologist who at the time had performed over three thousand autopsies, including many in arson cases, as an associate state medical examiner. Instead of engaging in what surely would have been a futile attempt to prevent her from testifying altogether, Norris more realistically attempted to limit Shah's testimony by excluding evidence that, because the fire had destroyed the victim's skin, she could not rule out several possible traumatic causes of death that commonly manifest injuries only on the skin. Norris therefore objected to that testimony on the ground that it was irrelevant, speculative, and prejudicial, but the trial court overruled the objection. Norris raised the issue again on appeal, and a majority of the Appellate Court agreed with him that the testimony was improper, although the majority found the error to be harmless. On certified appeal, Norris renewed the issue, but the Supreme Court concluded that the evidence was admissible. State v. Wargo, supra, 255 Conn. 119-26. Norris thus pressed the issue as much as possible.
Norris also had strategic reasons for allowing in Shah's testimony that she could not determine the cause or manner of death, in that Norris reasonably found this testimony helpful to the defense.
Finally, the petitioner faults Norris's cross-examination of Shah at trial because Norris supposedly failed sufficiently to attack Shah's testimony that the victim died before the fire and instead should have probed into whether the victim could have died after the fire reached flashover. Norris in fact asked Shah on cross-examination whether she knew that the fire went to flashover. He then queried as to whether the absence of soot and carbon monoxide did not absolutely mean that the victim died before the fire. In response, Shah agreed with Norris's suggestion, although she stated that this scenario could arise in a "flash" fire rather than a flashover fire. (Exhibit (Ex.) 2, Tab 9, pp. 55-56.) Although Norris did not follow up to ask whether one might make the same findings in a flashover fire, Norris nonetheless made the essential point that the absence of soot and carbon monoxide in the victim's body did not necessarily imply that the victim died before the fire. Norris emphasized this point by eliciting the ironic fact that, on the same day, Shah did an autopsy of another burn victim who died with no soot or carbon monoxide in her lungs. (Ex. 2, Tab 9, p. 53.)
"Flashover" is defined as a "transition phase in the development of a contained fire in which surfaces exposed to thermal radiation reach ignition temperature more or less simultaneously and fire spreads rapidly throughout the space." National Fire Protection Association 921 Guide for Fire and Explosion Investigations (NFPA 921) (1995 ed.), p. 6. There was no dispute in this case that the fire went to flashover in the room where the victim's body was found.
A "flash fire" is a "fire that spreads rapidly through a diffuse fuel, such as dust, gas, or the vapors of an ignitable liquid, without the production of damaging pressure." NFPA 921 Guide for Fire and Explosion Investigations (1995 ed.), p. 6. The state did not claim that the fire in this case was a flash fire.
There is no evidence, in any event, that further questioning would have benefitted the petitioner. Even the petitioner's pathology expert at the habeas trial could not cite any discussion in the literature of victims of flashover fires who had died without soot or carbon monoxide in their body.
Norris had also prepared commendably for cross-examination by retaining his own pathologist as an expert consultant, speaking to another noted pathologist, and doing research and reading in the field.
Given these facts, the petitioner's criticisms of Norris's cross-examination are of no moment. "An attorney's line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel's trial strategy . . . The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance." (Internal citations omitted; quotation marks omitted.) Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).
B
1
The petitioner's other main criticism of Norris's effectiveness focuses on his handling of the fire science evidence. The petitioner first alleges that Norris was ineffective at the hearing in probable cause with respect to the testimony of Detective Kevin McGuirk, the state's expert on the cause and origin of the fire. For the reasons stated above in connection with the claims concerning Dr. Shah, the petitioner has not proven either deficient performance or prejudice with respect to the probable cause hearing.
The petitioner next claims that Norris failed to move to exclude or limit McGuirk's expert opinion testimony during the trial. The basis of this claim, as explained during the habeas trial, is that McGuirk purportedly did not follow the scientific method and eliminate all alternative explanations before concluding that the cause of the fire was incendiary.
McGuirk had been a detective with the state fire marshal's office for eight years and had examined about five hundred fires. He was certified by the state to determine cause and origin and in fact was an instructor in the certification program. He testified that he closely and thoroughly examined the scene shortly after the fire. He fully documented his findings. McGuirk examined each possible accidental cause of the fire and eliminated it. In eliminating cigarettes as a possible explanation, McGuirk relied on the medical examiner's report that the victim died before the fire.
At the scene, McGuirk observed a line of holes on the floor leading up to the couch in the den where the victim's body lay. After eliminating other possible explanations, such as the flammability of the couch and carpet, McGuirk reasoned that the line of holes represented a pour pattern from something flammable introduced into the scene. McGuirk accordingly concluded that the fire was intentionally set. (Ex. 2, Tab 2, pp. 46-91.)
This trial took place before the Supreme Court held in State v. Porter, supra, 241 Conn. 57, that a trial court must consider the validity of the methodologies underlying proffered scientific evidence in determining the admissibility of that evidence. The standard for the admissibility of scientific evidence at the time of this criminal trial instead derived from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and made "general acceptance in the scientific community" the main criterion. State v. Porter, supra, 241 Conn. 66-67.
As the Porter court observed, however, Connecticut courts retained discretion to admit scientific evidence even when not generally accepted in the scientific community as long as the evidence was reliable. The opinion also noted that there was a trend in our courts at the time towards reliance on a validity standard for the admission of scientific evidence. State v. Porter, supra, 241 Conn. 67.
The petitioner has pointed to no case law authority holding that McGuirk's methodology was not generally accepted in the scientific community. Cf. State v. Sharp, 395 N.J. Super 175, 180-82, 928 A.2d 165 (2006) (fire causation opinion based on process of elimination technique admitted under Frye test). The petitioner instead relies on the National Fire Protection Association 921 Guide for Fire and Explosion Investigations (1995 ed.) (NFPA 921), which provides that the scientific method is the systematic approach recommended in fire investigations. The NFPA 921 then defines the scientific method as containing six steps: recognizing the need for investigation, defining the problem, collecting data, analyzing the data, developing a hypothesis, and testing the hypothesis through deductive reasoning. (NFPA 921, pp. 9-10.)
The petitioner also supplies no authority that, to be admissible at the time of trial, cause and origin testimony had to follow the scientific method outlined in the NFPA 921. In any case, the testimony recited above establishes that McGuirk did follow the essential steps in the scientific method. In particular, McGuirk used deductive reasoning in testing his hypothesis that the fire was incendiary by eliminating all reasonable alternative explanations.
Norris's decision not to challenge the admissibility of McGuirk's testimony finds further support in the case law governing expert opinion testimony. "Evidence is not rendered inadmissible because it is not conclusive. All that is required is that evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative . . . Thus, questions about the methodological validity of proffered scientific testimony will generally go to the weight of such evidence, not to its admissibility." (Internal quotation marks omitted; emphasis in original.) State v. Porter, supra, 241 Conn. 87-88. In general, the trial court retains wide discretion in admitting expert testimony. See State v. Perkins, 271 Conn. 218, 264, 856 A.2d 917 (2004). Under all the circumstances, then, there was no basis for Norris to move to exclude, or at least to prevail in moving to exclude, McGuirk's testimony.
2
The next contention is that Norris did not adequately cross-examine McGuirk. To support this contention, the petitioner called attorney Larry Hammond. Hammond is a former Deputy Assistant Attorney General of the United States who now practices privately in Arizona in the area of criminal defense and teaches at that state's law schools. Hammond's main point was that Norris failed adequately to challenge McGuirk's conclusion that the line of holes was a pour pattern, especially in view of the evidence that the scene became a flashover fire. See note 15 supra. Hammond believed that Norris should have elicited the fact that McGuirk had not tested, replicated, or validated his conclusions and that his conclusions rested more on intuition and experience than science.
While Hammond was an impressive witness, Norris need not have followed Hammond's approach. "Cross-examination is an art that requires instant judgment decisions; and no two attorneys would do it alike." Hogue v. Scott, 874 F.Sup. 1486, 1541 (N.D. Tex. 1994), aff'd, CT Page 2997 131 F.3d 466 (5th Cir. 1997), cert. denied, 523 U.S. 1014 (1998). Further, to provide effective assistance, counsel need not render the "best possible assistance" or do the "best job possible;" instead "the proper standard for attorney performance is that of reasonably effective assistance." (Internal quotation marks omitted.) Quintana v. Warden, 220 Conn. 1, 5, 593 A.2d 964 (1991) (quoting Strickland v. Washington, supra, 466 U.S. 687). Norris clearly met that standard. Although Norris was familiar with NFPA 921 and the concept of flashover fires, he reasonably believed that the tactic more appealing to the jury was to challenge McGuirk's conclusions, rather than merely his methodology. On cross- and recross-examination, Norris brought out that McGuirk found no "rainbow effect," which one might expect from the pouring of an ignitable liquid, that forensic tests revealed no evidence of accelerants in the floor or in the petitioner's clothing, that McGuirk could not say what type of accelerant was used, that there were explanations for the pattern on the floor that did not involve accelerants, and that McGuirk turned the property back to the petitioner after the fire, which he would not have done if he suspected arson at the time. (Ex. 2, Tab 2, pp. 91-118, 123-24.) Moreover, Norris's style was persistent and thorough. There was no constitutional deficiency in trial counsel's cross-examination of McGuirk.
Contrary to petitioner's suggestion, Norris need not have established an alternative explanation for the presence of a line of holes in a flashover fire. The petitioner bore no burden in the criminal trial; his task instead was to assist the jury in finding a reasonable doubt concerning the state's explanation for the pattern.
For example, on cross-examination, the following colloquy took place.
Q [Mr. Norris]: "And is it fair to say that to a question: `So, there are other explanations for what is observed in these photos which would not be the explanation of someone pouring accelerant on the floor?' To that question you answered: `Yes. That's correct.'
A [Mr. McGuirk] "Yes.
Q "And today, your testimony is that is not correct.
A "My testimony today is that this is a pour pattern. That statement is still correct, however.
Q "That statement that there could be explanations for this pattern other than an accelerant being put on the floor.
A "That's correct.
Q "Is still correct.
A "There are other explanations for a pour pattern. Yes.
Q "Okay. Which the explanation is not relating to accelerants?
A "Yes."
(Ex. 2, Tab 2, pp. 107-08.)
3
The petitioner also attacks Norris's decision to call John Barracato as a fire science expert for the defense. Norris, however, was very careful and thorough in his approach to this matter. Approximately one year before trial, Norris contacted Barracato on the recommendation of a private investigator. Before retaining Barracato, Norris interviewed him and reviewed his resume. Barracato was a former president of the International Association of Arson Investigators, a former deputy chief fire marshal for the New York City Fire Department, and was a member of the technical committee for the NFPA 921 (1992 ed.). He had actually taught classes that Kevin McGuirk had taken. He had previously testified mostly for the state. He was at the time an assistant professor of fire science at John Jay College of Criminal Justice.
On Norris's recommendation, the petitioner agreed to retain Barracato as an expert. Together, Norris and Barracato visited the crime scene several times. Norris reviewed the NFPA 921 and the concept of flashover fires with Barracato. Barracato believed, however, that the best way to attack McGuirk's opinion was to challenge his conclusions rather than his methodology. Barrracato wrote a report concluding that the fire was not intentionally set and was consistent with a smoldering fire that went to flashover. Barracato testified for the defense in a similar fashion. In particular, he stated that the holes in the floor were more indicative of a melting down of the rug and padding from flashover than a pour pattern because, in the latter event, one would expect to see more of an ink blot-type irregular pattern than a straight line. (Ex. 2, Tab 4, p. 56.)
The petitioner now attacks Norris's use of Barracato because the latter allegedly relied on outdated methodology rather than strict scientific method. This issue is largely academic. Although the state on cross-examination did challenge some of Barracato's as unsupported by NFPA 921, it did not launch a wholesale attack on his methodology. (Ex. 2, Tab 4, pp. 66-70; Tab 5, p. 13.) Thus, the jury never learned of the deficiency now cited by the petitioner.
Barracato testified that the fact that the front face board of the couch was intact negated the likelihood of the use of ignitable fluids. The state sought to establish on cross-examination, and the petitioner now suggests, that Barracato misidentified the rear of the couch as the front. (Ex. 2, Tab 4, pp. 26-28, 62-66). On redirect, Norris attempted to shift the emphasis from the sides of the couch to the underside and elicited that, because the underside was intact, the fire would not likely have been accelerant-aided. (Ex. 2, Tab 5, pp. 27-30.) In his summation, Norris argued: "Mr. Barracato explained that whether it was the front or the back of the board it would have burned up." Norris then disputed the contention that Barracato had made a mistake. (Ex. D (Oct. 9, 1996), p. 54.) Norris thus defused this issue.
The petitioner presented the testimony of Christopher Wood as an example of the type of expert testimony that Norris should have presented. Wood is a fire protection engineer who did prove knowledgeable and articulate on the stand. Prior to his testimony, Wood had tested the hypothesis that an accidental fire that goes to flashover could produce a burn pattern similar to the line of holes in this case. Wood demonstrated that a similar burn pattern could occur as a result of, and directly over, a gap or seam in the carpet padding, which would leave the floor with less protection.
Norris, however, had no obligation to call an expert who would have conducted a similar experiment or who would have provided similar testimony. The choice of which expert to call is largely a matter of professional judgment. See Echols v. State, 354 Ark. 530, 554, 127 S.W.3d 486 (2003). There would have been risks in presenting someone similar to Wood. In any event, it is always possible to retry a case with different, even better experts. But that approach relies on the "distorting effects of hindsight . . ." Bryant v. Commissioner of Correction, supra, 290 Conn. 512-13. The only question is whether Norris's actions in retaining and presenting Barracato were reasonable. The court concludes that they were.
The state might have shown that Wood's experiment did not accurately replicate the conditions in the victim's home. For example, there was no evidence that the carpet pad in the actual den had a seam, or that any seam ran directly underneath the line of holes. The state might also have elicited the point that Wood's experiment does not explain how the fire started.
4
The petitioner's final claim is that Norris was ineffective in his cross-examination of Daniel Churchward, who was a rebuttal fire science expert witness for the state. Churchward testified on direct exam that liquid poured on a carpet will retain its pour pattern with little splashing. On cross, Norris brought out that one would expect the liquid to disperse at least to some degree and that, in any case, the hole patterns could occur in fires in which there was no accelerant. Churchward added on redirect that, to cause the holes in the floor, the area had to be burning either more intensely because of fuel or burning longer. On recross, Norris countered by establishing that the witness could not say whether the area had burned more intensely or had burned longer. (Ex. 2, Tab 7.) Thus, Norris met every point made by the state with a solid response. There was no ineffective assistance of counsel in this case.
In summation, Norris persuasively argued as follows: "I mean, we have charge of murder with no evidence of cause of death. And we have charge of arson with no evidence of accelerant . . .
"They brought in Daniel Churchward . . . And he testified that, well, it's his opinion that either there was an accelerant on the floor or something that burned. And I asked him. I said, But as to what it was, that would be speculation? And he said, Yes. You may remember the examination. Speculation. Well, the judge is gonna tell you, you cannot engage in speculation." (Ex. D (Oct. 9, 1996), pp. 55-56.)
The court has examined the other specifications of ineffective assistance of counsel alleged in the petition and finds that there is no merit to them.
VI
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
In view of this decision, the court denies the respondent's motion for summary judgment as moot.
It is so ordered.