Opinion
No. CV 01-0448341
July 8, 2004
MEMORANDUM OF DECISION ON PETITIONER'S SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS
The petitioner was the defendant in a criminal case, Docket No. CR-92-10863, in the judicial district of Ansonia/Milford. On May 18, 1993, after a jury trial, the defendant was convicted of kidnapping first degree in violation of C.G.S. § 53a-92(a)(2)(A); two counts of sexual assault in a spousal or cohabiting relationship in violation of § 53a-70b; and attempt to commit sexual assault in a spousal cohabiting relationship in violation of §§ 53a-49 and 53a-70b. He was acquitted of a charge of robbery first degree in violation of § 53a-134(a)(3). On June 30, 1993, the petitioner was sentenced to a total effective sentence of fifty years in prison by the court. (Hartmere, J.). On October 26, 1993, the sentence review division of the Superior Court affirmed the sentence. The convictions were affirmed on direct appeal, State v. Zollo, 36 Conn. App. 718 (1995), and the petitioner's petition for certification for appeal from the Appellate Court was denied. State v. Zollo, 234 Conn. 906 (1995). The petitioner remains in the custody of the respondent pursuant to said sentence. The petitioner was represented by Attorney David Egan at trial, sentencing, and before the sentence review division.
The petitioner filed a two-count second amended petition for writ of habeas corpus on August 23, 2002, and the respondent filed a second amended return on September 4, 2002. This court conducted an evidentiary hearing on the petition on September 23, 2003. The witnesses were the petitioner, Detective Joseph Biondi of the West Haven Police Department, and Attorney Egan.
The Appellate Court opinion stated that the jury reasonably could have found the following facts:
On February 11, 1991, the victim, the estranged wife of the defendant, was assaulted by an unknown assailant wearing a ski mask, a jacket, and a long pea coat. At approximately 12:35 p.m., the assailant appeared inside the victim's cellar with a hunting knife in his hand He grabbed her by the hair, cut her finger with the knife, put a bag over her head and pulled her upstairs, where he handcuffed her hands, wrapped her head in duct tape, and sexually assaulted her for approximately one and one-half hours. During the assault, he also urinated on the victim's chest twice.
The assailant spoke only twice. In response to the victim's plea that he not kill her because she was the mother of two children, he responded in a low voice, "I know." Just before he left the crime scene, the assailant also stated, "Give me fifteen minutes" in a similar low voice.
At approximately 2 p.m. on the date of the assault, the victim's neighbor was operating a remote control car in the street in front of the victim's home. A vehicle that the neighbor recognized as belonging to the victim sped past. The neighbor recognized the driver as the defendant, Bruce Zollo. The neighbor also observed that the defendant was adjusting a woolen cap on his head as he drove by.
The neighbor then saw the victim standing in her driveway, wearing only a small jacket or vest. Her head was wrapped in duct tape that covered her eyes, and she was bleeding. The neighbor led the victim into his house and called paramedics, who had difficulty removing the tape from the victim's head, even with the use of trauma scissors.
The victim had been married to the defendant for eight years at the time of the assault. The couple had separated because of the defendant's drug use. According to the defendant's friend, Paul Norris, the defendant, prior to the assault, had expressed a desire to take revenge on his wife for initiating the separation. The defendant asked Norris to participate in sexually assaulting the victim, but Norris refused.
Shortly after the assault, the defendant arrived at the victim's home and stated that he was concerned that his wife had been raped. While the police were gathering evidence in the victim's home, the defendant requested several times that he be allowed to clean the house before the police entered it. The police uncovered a towel stained with semen, from which the prosecution was able to gather a DNA sample for analysis by Harold Deadman, a forensics expert from the Federal Bureau of investigation (FBI), who testified at trial.
State v. Zollo, supra, 721, 722.
The first count of the petitioner alleges that the petitioner's incarceration is illegal because the conviction was obtained in violation of the petitioner's right to effective assistance of counsel as guaranteed by the United States Constitution and the Connecticut Constitution. The second count claims the state withheld exculpatory information.
The petitioner is entitled to receive effective assistance of counsel at trial.
The petitioner's right to effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution and article first, § 8, of the Connecticut constitution. "The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chace v. Bronson, 9 Conn. App. 674, 678, 564 A.2d 303 (1989)." Williams v. Bronson, 21 Conn. App. 260, 263, 573 A.2d 330 (1990). "In order to prevail in a habeas corpus challenge, `the petitioner "must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. Denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962)." D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984).' Bowers v. Warden, 19 Conn. App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989)." Sherbo v. Manson, 21 Conn. App. 172, 180-81, 572 A.2d 378 (1990). "In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal." Magnotti v. Meachum, 22 Conn. App. 669, 674, 579 A.2d 553 (1990); see Biggs v. Warden, 26 Conn. App. 52, 55, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991).
"`A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.' Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 200 (1989)." Fair v. Warden, 211 Conn. 398, 402, 559 A.2d 200 (1989)." Fair v. Warden, 211 Conn. 398, 402, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S.Ct. 512, 108 L.Ed.2d 514 (1989).
"With regard to the performance component of this inquiry, `the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" Aillon v. Meachum, supra, 211 Conn. 357. "The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised. Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). The defendant is also not guaranteed assistance of an attorney who will make no mistakes. United States v. Campbell, 616 F.2d 1151, 1152 (9th Cir. 1980). `"What constitutes effective assistance [of counsel] is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation." Peoples v. Baldi, 54 N.Y.2d 137, 146, 429 N.E.2d 400, 444 N.Y.S.2d 893 (1981).' Levine v. Manson, 195 Conn. 636, 649, 490 A.2d 82 (1985)." Giannotti v. Warden, 26 Conn. App. 125, 130, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992); see also Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991).
"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.' . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Citations omitted.) Strickland v. Washington, supra, 466 U.S. 689-90; see also Quintana v. Warden, 220 Conn. 1, 593 A.2d 964 (1991); Williams v. Warden, 217 Conn. 419, 586 A.2d 582 (1991).
Robert Jeffery v. Commissioner of Correction, 36 Conn. App. 216, 218-20.
The petition sets forth a large number of alleged deficiencies by Mr. Egan. However, the claims with respect to the first count which are pursued in the petitioner's brief are that Mr. Egan (a) failed to investigate the case; (b) failed to adequately cross examine the state's witnesses; (c) failed to conduct an adequate defense; (d) failed to challenge the admissibility of the state's DNA evidence; (e) and failed to preserve issues regarding DNA evidence for appeal. The brief also claims in the first count that Mr. Egan should not have represented the petitioner at sentencing and before the sentence review division, because, since the petitioner had already filed a habeas corpus petition against his attorney, Mr. Egan had a conflict of interest.
The second count makes a claim that the prosecution withheld exculpatory information. This claim is not pursued in the petitioner's brief and is therefore abandoned.
The petitioner testified in this case. His testimony was evasive, rambling, and inconsistent. His testimony about the number of times he met with Mr. Egan and the investigator, Mr. Candia, and the extent of their discussions about the facts of the case, the state's evidence, the defense strategy, and other matters relevant to Mr. Egan's representation was inconsistent and contradictory, and to a large extent contradicted by other evidence in the record. The court finds that the petitioner was not a credible witness.
Mr. Egan represented the petitioner in his capacity as an assistant public defender. He testified in detail about his representation of the petitioner from the time he first met him, through the trial, sentencing, and the proceedings before the sentence review division. The court was impressed with his demeanor on the stand and his testimony. The court finds that Mr. Egan was a credible witness.
Detective Biondi testified about certain details of his investigation into the assault on the victim, including conversations he had with the petitioner at the crime scene. His testimony was direct and consistent. He was a credible witness.
The first broad claim made by the petitioner in his brief is that Mr. Egan failed to properly investigate the case. In support of this claim it is alleged that no investigation was made of the state's forensic evidence, no tests were made on a blue towel which was part of the state's evidence, no tests were made so as to compare the petitioner's blood and hair with semen and hair found on the towel, and no tests were made so as to compare urine found at the scene with the petitioner's urine. It is also claimed that Mr. Egan didn't attempt to locate certain individuals, didn't obtain certain West Haven Police Department telephone records, didn't investigate the details of alleged sexual assaults in the area of the Veterans' Administration Hospital, didn't compare the petitioner's foot or shoes with a partial footprint found in the cellar where some portion of the criminal conduct occurred, and didn't attempt to verify the petitioner's alibi.
With respect to all of these claims, the short answer is that, even if the handling of these issues by Mr. Egan was deficient, which the court does not so find, there is no evidence as to what evidence would have been developed or uncovered in these areas and therefore the petitioner has failed to prove that he is prejudiced by Mr. Egan's alleged conduct.
The second broad claim by the petitioner is that Mr. Egan did not adequately cross-examine certain state's witnesses.
The first witness referred to in the petitioner's brief is Frank Balbusti, who lived next door to the petitioner and the victim, and described the petitioner driving rapidly away from the home shortly before the victim emerged from the house. Mr. Balbusti had given a statement to the police one week after the assault. The petitioner claims that Mr. Egan failed to use the statement to impeach Mr. Balbusti. A review of the trial transcript reflects extensive use of the statement in an attempt to impeach Mr. Balbusti.
The petitioner claims that the cross-examination of Maria Zollo and Paul Norris was "seriously flawed." The court has reviewed the entire testimony, direct and cross of these two witnesses. The cross-examination was fully adequate. The suggestions in petitioner's brief as to areas of cross-examination that Mr. Egan should have pursued are without merit.
Randy Zollo, the petitioner's son, had given a statement to the police which referred to certain inculpatory statements made by the petitioner. While the case was pending, Randy sent a letter to Mr. Egan in which he recanted his previous statement to the police. Randy testified in accordance with his original statement, and Mr. Egan did not use the recantation to impeach him. The petitioner claims that Mr. Egan was ineffective in not using the recantation to impeach Randy. Mr. Egan testified that he did not use the recantation because he had interviewed Randy earlier in the day, before he testified, and that Randy said the recantation was not true. Mr. Egan also testified that other portions of Randy's testimony were helpful to the defense and he made the tactical decision to use Randy's testimony rater than to try and impeach him with his recantation. This was reasonable trial strategy.
The petitioner also claims that Mr. Egan was ineffective in connection with his cross-examination of Phyliss DiNello, Detective Biondi, and Detective Burton Gifford. The suggested areas of cross-examination of these witnesses amounts to nothing more than second guessing proper trial strategy of defense counsel and is without merit.
The petitioner also claims that Mr. Egan failed to challenge the state's expert on DNA statistical probability that linked the petitioner to the assaults. The petitioner offers no suggestions as to how this evidence should have been challenged, and if so challenged, that the challenge would have been successful. It is also claimed that Egan should have called an expert to challenge the state's forensic and DNA evidence. The record reflects that Mr. Egan had an expert review the FBI's DNA analysis and that this expert, Dr. Baird, agreed "with the conclusions reached by the FBI in that the DNA pattern generated from the known blood samples of B. Zollo matched the question, evidentiary sample from the towel . . ." The petitioner has failed to prove that had Mr. Egan called Dr. Baird or some other expert concerning the DNA testing that any evidence produced would have been of assistance to the defense.
Under the heading of "Failure to conduct an adequate defense" the petitioner claims that Mr. Egan should have called various witnesses to prove that someone other than the petitioner committed the crime, and also should have called a woman named Sue Pertrice who he claims would have impeached other witnesses. What witnesses who were not called would have testified to is total speculation.
The petitioner also claims that Mr. Egan should have called the petitioner to testify. The court accepts Mr. Egan's testimony that the petitioner elected not to testify after Mr. Egan began to review the subject of his testimony. The record also reflects that Judge Hartmere advised the petitioner of his rights concerning his election whether or not to testify and the petitioner elected not to testify.
Throughout his brief the petitioner repeatedly claims that Mr. Egan failed to challenge the admissibility of the state's DNA evidence. The record reflects that Mr. Egan filed a motion to suppress this evidence, an extended evidentiary offer of proof was held in the absence of the jury, and Judge Hartmere denied the motion to suppress. As indicated earlier, what any other experts might have testified to if called is pure speculation.
The next claim of ineffectiveness of counsel with respect to the criminal trial concerns a claim made on appeal and rejected by the Appellate Court. One of the claims on appeal was that the trial count should not have allowed the FBI expert, Mr. Deadman, to testify as to the statistical probability of the DNA match because such evidence is inadmissible under the standard for admissibility of scientific evidence as articulated in Frye v. United States, 29 F. 1013 (D.C. Cir. 1923). The petitioner claims that Mr. Egan did not preserve this claim for appellate purposes. In support of his claim that Mr. Egan was ineffective in this regard the petitioner refers to the following language of the Appellate Court's decision in finding that the evidence was admissible. "We conclude that because the defendant withdrew his objections to the statistical probability testimony, he did not preserve the claim sufficiently." State v. Zollo, supra, 726.
What the petitioner ignores in the Appellate Court decision is that the claim that the evidence was inadmissible was rejected for two reasons. The trial court had conducted an extended evidentiary hearing and had found that the DNA testimony satisfied the Frye standard for admissibility of scientific evidence. The Appellate Court held that while it would review a trial court decision with respect to whether a finding under Frye must be made, once a trial court had made a factual finding in support of admissibility under Frye, the Appellate Court will not review those facts. Thus, it is clear that even if trial counsel had preserved the claim for appeal, the decision of the Appellate Court that the DNA evidence was admissible would not have changed. The petitioner has suffered no prejudice in connection with this claim.
The petitioner's brief also states that the Appellate Court refused to review challenges to the jury instructions because they were not properly preserved at trial and did not meet the test for review under State v. Golding, 213 Conn. 233 (1989). In fact, the Appellate Court did review the challenges under the Golding test. Zollo, supra, 729-36. This claim is without merit.
The final claim made in the petitioner's brief is that Mr. Egan should not have represented the petitioner at sentencing or before the sentence review division because of a conflict which arose because the petitioner had made a claim of ineffective assistance of counsel before sentencing. The transcript of the sentencing reflects that the petitioner wanted a continuance so that he could get an attorney to file a motion in connection with new evidence. He refused to tell Judge Hartmere what the new evidence was. The request for a continuance was properly denied by Judge Hartmere. He did not say he wanted a new attorney for sentencing. Mr. Egan testified that the fact that the petitioner had made various claims against him did not affect his representation of the petitioner at sentencing or before the sentence review division. The transcript of the sentencing reveals that Mr. Egan made a complete and adequate argument on behalf of his client. The petitioner has failed to prove that Mr. Egan was deficient in his representation of the petitioner at sentencing or at sentence review or that he was prejudiced by the representation on either occasion.
In summary, the court finds that the petitioner has failed to prove that Mr. Egan was deficient in any of the ways which have been briefed, or that he has been prejudiced by anything that Mr. Egan did or did not do during the course of the trial. The petitioner has failed to overcome the presumption that trial counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Jeffery v. Commissioner, supra, 220. Therefore, the petitioner has failed to prove ineffective assistance of counsel.
This court has reviewed the entire record of the criminal trial and fully agrees with the comment of Judge Hartmere made at the conclusion of the trial. "Let me compliment counsel for both sides on the jobs you each did for your respective clients in the course of the trial, truly outstanding examples of trial advocacy, and the final arguments this morning were outstanding and I want you both to know that prior to any word from the jury."
The second amended petition is dismissed.
William L. Hadden, Jr. Judge