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Morgan v. Warden

Connecticut Superior Court Judicial District of Tolland at Rockville
Mar 9, 2006
2006 Ct. Sup. 4383 (Conn. Super. Ct. 2006)

Opinion

No. CV 04 0004404 S

March 9, 2006


MEMORANDUM OF DECISION


The petitioner in the above-captioned matter, Daniel Morgan, filed a two-count Amended Petition in which he alleges ineffective assistance of counsel in count one and actual innocence in count two. In response, the respondent Commissioner of Correction filed a Return in which it denied having sufficient information to admit or deny the petitioner's claims and consequently left the petitioner to his proof. Each party submitted pretrial briefs outlining the prospective evidence and their respective positions regarding the appropriate disposition of the petitioner's claims.

This court presided at the habeas trial of this matter on February 17, 2005 and heard testimony from the petitioner's trial counsel, Peter Scillieri, Senior Assistant Public Defender in the Judicial District of New London, as well as testimony from the petitioner. In addition, at that time the court admitted into evidence various documents, including criminal trial court transcripts and written statements made by the petitioner, among other materials.

The court, having reviewed all of the evidence and arguments offered by the parties and considered the applicable legal standards, finds for the reasons indicated herein that the petitioner has failed to establish the allegations made in either count of the Amended Petition. The petition for a writ of habeas corpus is therefore dismissed.

Facts

The court makes the following findings of fact based on the credible evidence admitted at the habeas trial. The petitioner and his girlfriend, Cynthia Niddrie, are the parents of Daniel Morgan, III (victim), who was born on February 2, 2002. The petitioner, Niddrie and the victim all lived with the maternal grandmother, Carol Mastrandrea, in a home located in Norwich, Ct. on April 27, 2002. On that date, at about 10:00 a.m., Niddrie left home to go to work and left the victim in the care of the petitioner, who was in the couple's bedroom. Mastrandrea was in a separate part of the residence.

At some point during the morning after Niddrie went to work, the petitioner was feeding the victim a bottle of milk while holding him in his arms and the victim vomited on the petitioner. Consequently the petitioner became angry and threw the child into a crib/car seat located in the room. As a result of the petitioner's action, the child suffered a fatal brain injury and died on April 28, 2002 after receiving medical treatment.

As a result of the child's death, the Norwich police opened an investigation and took two written statements from the petitioner on April 28th and April 29th, respectively. In the first statement, the petitioner claimed that nothing extraordinary had occurred prior to victim's need for medical treatment. In the second statement, the petitioner indicated that while he was holding the victim in his arms, he bent over to retrieve a baby bottle he had dropped and the victim accidentally struck his head against a solid wood bedpost.

Dr. Malka B. Shah, an Associate Medical Examiner for the Office of the Chief Medical Examiner for the State of Connecticut, performed an autopsy on the victim on April 29, 2002 and later issued a written report indicating that the victim's cause of death was blunt force trauma of the head and the manner of death was homicide. The medical examiner's findings, as well as the medical records from the William Backus Hospital and Connecticut Children's Medical Center, two facilities where the victim had received medical treatment after being injured on April 27th, were inconsistent with the petitioner's statements about how the victim suffered his injury.

Thereafter in May of 2002 the petitioner was arrested pursuant to a warrant, charged with first degree manslaughter, a felony carrying a maximum sentence of twenty years in prison, and presented in the Judicial District of New London, where Scillieri was appointed as the petitioner's trial counsel. The petitioner, who was on probation and owed a three-year suspended sentence at the time of the alleged homicide, was also charged with probation violation. The probation violation charge was premised on his alleged criminal conduct toward the victim and related to the petitioner's January 20, 1999 conviction for third degree assault, first degree reckless endangerment and cruelty to persons. That case involved a claim that the petitioner assaulted the one-year old daughter of his then live-in girlfriend.

Between his initial appointment and September 17, 2003, the date upon which the petitioner pleaded guilty to the reduced charge of second degree manslaughter, Scillieri and the petitioner met on numerous occasions and discussed the state's factual allegations, applicable law, potential defenses, range of penalties and potential plea agreements. These discussions occurred both at Cheshire Correctional facility where the petitioner was being held in lieu of bond and at the courthouse when pretrial hearings were scheduled. In addition to meeting with Scillieri, the petitioner met with the public defender investigator, Tracy Werniker, and the public defender social worker, Miriam Holian.

Scillieri investigated the petitioner's case through his review of all the police reports, the victim's medical records, the petitioner's written statements to the Norwich Police and consultation with several medical experts. Trial counsel employed the use of those medical experts for the purpose of determining the accuracy of the medical examiner's report, whether that report could be reconciled with the petitioner's version of events and whether the victim's death might be due to some cause which was unrelated to the petitioner's conduct. Trial counsel also investigated the case by initiating and maintaining contact with Niddrie, who believed that the petitioner had not intentionally caused the victim's fatal injury and wanted to help him receive a more lenient punishment than he would otherwise get without her support. In addition, counsel's investigative efforts included having the petitioner speak extensively with Holian about the petitioner's version of events. After meeting with Holian on several occasions, the petitioner ultimately admitted to her that he had thrown the victim in his crib/car seat out of anger after the child had vomited on him. The petitioner gave a detailed verbal account to Holian regarding how he had injured the victim and demonstrated his conduct to her as well. Holian kept notes of her meeting with the petitioner and informed Scillieri about what had been discussed.

The medical experts included the following individuals: Dr. Mark Taft, a medical examiner from New York; a neurologist named Dr. Wolfe; and a blood specialist named Dr. Hogan.

The medical experts employed by trial counsel, after reviewing the victim's medical records and the autopsy report, opined that the petitioner's admission to Holian was consistent with Dr. Shah's autopsy report. Based on his consultation with the medical experts, Scillieri was convinced that the petitioner's written statements to the police were inconsistent with the medical examiner's report and that the victim's death was not attributable to anything unrelated to the petitioner's conduct.

Scillieri spoke with the petitioner about how the admission could be used to persuade the state's attorney to reduce the charge from first degree manslaughter to second degree manslaughter, which carries a maximum of ten years. The attorney also talked to the petitioner about the use of the admission to convince the trial court to accept a total effective sentence of twelve years for a plea to second degree manslaughter and violation of probation. Trial counsel and the petitioner both understood that without an "acceptance of responsibility" by the petitioner through the use of his admission, the petitioner would be exposed to a total effective sentence of about double the time he would face if convicted after trial.

Counsel advised the petitioner that the risk of a conviction after trial for first degree manslaughter and probation violation was increased because his written statements to the Norwich Police were inconsistent with each other and with the medical examiner's report to a degree that was incriminating. Scillieri also explained that what he had learned from the defense experts was not helpful to the defense. Finally, trial counsel explained that the petitioner's 1999 conviction for abusing his then girlfriend's one-year old child might be admissible in evidence against him because both cases involved assaults on young children with whom he had contact.

In light of the potential problems with prevailing at trial, Scillieri and the petitioner agreed that Scillieri should discuss the petitioner's admission with the state's attorney and the court for the purpose of getting the first degree manslaughter charge reduced and negotiating the most favorable plea agreement possible. Scillieri thereafter informed the state and court about the petitioner's admission and was thereby able to convince the state to reduce the charge from first degree manslaughter to second degree manslaughter. Trial counsel also persuaded the court to accept an agreed-upon sentence of twelve years to serve, including ten years for the manslaughter second degree charge and two years consecutive for the probation violation. The plea agreement was reached on or about July 3, 2003 and the petitioner had until September 17th to accept or reject it. Between those two dates Scillieri and the petitioner had contact with each other, either directly or through his staff, including Holian, and the petitioner had ample time to consider the proposed plea agreement. When the petitioner was deciding whether to accept or reject the plea agreement, he clearly understood the nature of the manslaughter second charge, the proposed plea bargain sentence and the fact that he was giving up his right to a trial.

On September 17th, the petitioner met with trial counsel before entering his plea and again discussed the plea bargain as well as the questions that the trial court would ask the petitioner during the plea canvass. The two also discussed the meaning of a guilty plea, nolo contendere plea and an "Alford" plea. Notwithstanding this discussion, the petitioner was familiar with the nature of a plea canvass because he had entered pleas and been canvassed by a trial judge on at least three prior occasions, including his 1999 guilty plea under the "Alford" doctrine for assaulting his girlfriend's young child. Trial counsel and the petitioner agreed, for strategic reasons, to enter a straight guilty plea, as opposed to a plea of nolo contendere or Alford plea, in order to get the benefit of the second degree manslaughter charge and the twelve-year sentence. The petitioner knew the elements of second degree manslaughter, knew that he would be giving up his right to jury trial and knew that he would be giving up his right against self-incrimination.

The petitioner entered his plea to the second degree manslaughter charge and was throughly canvassed by the trial court, which explained the elements of the offense charged, the fact that he was giving up his right to confront the witnesses against him, the fact that he was waiving his right against self-incrimination and that fact that there would be no jury trial after acceptance of the plea. The petitioner indicated to the court that he understood he had the aforementioned rights and that he was waiving them.

During the course of the plea hearing, Scillieri referred to the petitioner's admission to Holian and, notwithstanding having had the opportunity to speak, the petitioner failed to claim that he was dissatisfied with his attorney's representation or was pressured to plead guilty by him, failed to disavow making the admission and failed to make any claim about any third party being responsible for the victim's fatal injury. The petitioner knowingly, intelligently and voluntarily entered his guilty plea. He failed to maintain his not guilty plea and did not insist on proceeding to trial.

After the court accepted the petitioner's guilty plea, it continued the case until October 29th, a period of approximately six weeks, for the preparation of a pre-sentence investigation report. In that report and on the date of sentencing, the petitioner again had an opportunity to complain about his lawyer's representation, deny his admission to Holian and to raise the issue of third-party culpability, but failed to do so.

There is no credible evidence that anyone other than the petitioner was present and involved in inflicting the victim's fatal injury. Further, the petitioner failed to offer any credible evidence to suggest that he would have insisted on going to trial or that he would have been acquitted had he went to trial.

The court notes that the petitioner did testify at the habeas trial that he would have insisted on going to trial if he had been properly represented by his attorney, but the court does not credit the petitioner's testimony.

Discussion I

The petitioner's claim of ineffective assistance of counsel is essentially outlined in paragraphs 10-16 of the first count, where he claims that his attorney failed to ensure that his guilty plea was voluntary, failed to properly advise him of the consequences of his guilty plea and failed to conduct a sufficient investigation into the state's claims and the potential defenses. The petitioner's allegations are without merit.

The appropriate standard of review applicable to the petitioner's ineffective assistance claims is well established. "First, the [petitioner] must show that counsel's performance was deficient . . . Second, the [petitioner] 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 (1984). In order to show deficient performance under the first Strickland prong, the petitioner must prove that counsel's performance "fell below an objective standard of reasonableness . . . The proper measure of attorney performance remains simply reasonableness under prevailing professional norms . . . 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 . . . The defendant is also not guaranteed assistance of an attorney who will make no mistakes." Giannotti v. Warden, 26 Conn.App. 125-30 (1991) (citations omitted; internal quotations marks omitted).

A fair assessment of an attorney's 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 [petitioner] 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; internal quotation marks omitted.) Minnifield v. Commissioner of Correction, 62 Conn.App. 68, 71-72 (2001).

In order to prove prejudice under the second Strickland prong, the petitioner must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Goodrum v. Commissioner of Correction, 63 Conn.App. 297, 301 (2001). Since the petitioner is required to satisfy both Strickland prongs in order to succeed, his inability to satisfy either one makes it unnecessary for the court to address the other. "A reviewing court can find against the petitioner on whichever ground is easier." State v. Silva, 65 Conn.App. 234, 259 (2001).

The Strickland standard for determining whether trial counsel was ineffective was modified in cases involving pleas of guilty. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The modified prejudice prong announced in Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial, and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial. Id., 59.

Under our law, the "right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction." Copas v. Commissioner of Correction 234 Conn. 139, 154, 662 A.2d 718 (1995); Siemon v. Stoughton, 184 Conn. 547, 556-57 n. 3, 440 A.2d 210 (1981). Regardless, "counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it." (Internal quotation marks omitted.) Ostolaza v. Warden, 26 Conn.App. 758, 765, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).

In the present case, the credible evidence establishes that the petitioner's guilty plea was in fact made knowing, intelligent and voluntary, that he knew the consequences of his plea and that he knew he was waiving his right to trial. Scillieri met with the petitioner on numerous occasions and explained the nature of both first and second degree manslaughter, the range of penalties, the state's evidentiary claims, the potential defenses and the proposed plea agreement. Consequently, the petitioner was familiar with the elements of the offense charged, the fact that he was giving up his right to trial, including his right to confront the witnesses against him and his right against self-incrimination. Moreover, he was aware of the sentence that would be imposed pursuant to the plea agreement. Further, the petitioner had entered pleas and been canvassed on three prior occasions and was therefore familiar with the procedure for voluntarily entering a plea in a criminal case.

In addition, the trial court conducted an exhaustive canvass of the petitioner on September 17th in which it explained the elements of the offenses charged, the fact that the petitioner was waiving his right to trial, his right to confront the adverse witnesses and his right to remain silent. The court also explained the range of penalties for second degree manslaughter as well as violation of probation. It also explained the sentence to be imposed pursuant to the plea agreement. The petitioner indicated to the court that he understood his rights, that he was waiving such rights, that he understood the plea agreement and that his plea was voluntarily made.

During the plea canvass and subsequently on October 29, 2003 at the sentencing, the petitioner failed to complain about his attorney's performance, indicate that he did not understand the nature or consequences of his plea or indicate that any third party was responsible for the victim's death.

In the present case, the credible evidence not only establishes that the petitioner's plea was knowing and voluntary, it also shows that trial counsel did in fact conduct an adequate investigation into the state's allegations and the potential defenses. Trial counsel reviewed all the relevant police reports, witness statements, medical records and used the public defender investigator and social worker to obtain information about the case. Furthermore, Scillieri employed three medical experts to review the victim's medical records, consulted with the experts regarding the accuracy of the autopsy report and used them to determine whether the victim's death may have been caused for reasons other than the petitioner's conduct. Trial counsel performed in a reasonably competent manner in investigating the state's factual allegations and preparing a defense. The petitioner has failed to prove that counsel's investigatory efforts were improper.

Furthermore, the petitioner failed to offer any credible evidence that but for his attorney's deficient performance he would have insisted on going to trial and would have succeeded. Scillieri truthfully testified that the petitioner never insisted on going to trial and there is no persuasive evidence to suggest that the petitioner would have insisted on going to trial in the absence of any deficient performance by his lawyer. The court also notes that even assuming that the petitioner would have insisted on having a trial, there is no credible evidence that he was likely to succeed at a trial. At the habeas trial the petitioner indicated that his defense would have been his assertion that "I am innocent." The petitioner's bare claim of innocence would have been a weak defense at a criminal trial because he is not credible, especially in light of his inconsistent statements to the Norwich Police and the medical examiner's autopsy report. Although it is unlikely that the petitioner's admission to Holian would be admissible evidence at a criminal trial, that admission further destroys his credibility in this court's judgment. It is not reasonably probable that the petitioner would have prevailed at a criminal trial.

The petitioner has failed to prove that his attorney performed deficiently or that, but for such deficient performance, he would have insisted on going to trial and succeeded. Therefore, the petitioner's claim of ineffective assistance of counsel is dismissed.

II.

In the second count of the Amended Petition, the petitioner raises a claim of actual innocence. In order to establish his claim of actual innocence, the petitioner must, as a threshold matter, base his claim on "newly discovered evidence." See Williams v. Commissioner of Correction, 41 Conn.App. 515 (1996). This means that "a petitioner must demonstrate, by a preponderance of the evidence, that the proffered evidence is such that it could not have been discovered earlier by the exercise of due diligence." Johnson v. State, 36 Conn.App. 59, 63, 647 A.2d 373, cert. denied, 231 Conn. 946, 653 A.2d 827 (1994), citing Asherman v. State, 202 Conn. 429, 521 A.2d 578 (1987). The petitioner in this case has failed to satisfy the condition precedent that his claim of actual innocence is based on newly discovered evidence. There was no claimed newly discovered evidence offered at the habeas trial. Therefore, "the petitioner's claim of actual innocence is lacking the requisite predicate for evaluation under [the] legal standard [for claims of actual innocence] . . ." See Williams, supra, 529. The petitioner's claim of actual innocence must fail for this reason alone. Assuming, however, that the court must address the merits of the petitioner's actual innocence claim, such claim still fails.

In Miller v. Commissioner of Correction, 242 Conn. 745 (1997), our Supreme Court held that "the 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." Id., 747. Thus, the petitioner must first persuade the habeas court by clear and convincing evidence that, after considering both the criminal trial court evidence and the habeas trial evidence, he is actually innocent. The petitioner has failed in this threshold requirement. The evidence does not clearly and convincingly demonstrate that the petitioner is actually innocent of the offenses of which he was convicted. Therefore, the petitioner's actual innocence claim is dismissed.

Conclusion

The petitioner has failed to prove by a preponderance of the evidence that his trial counsel performed deficiently or that he was prejudiced by any such performance. Moreover, the petitioner has failed to produce any newly discovered evidence which proves that he is actually innocent. Even assuming the petitioner has produced newly discovered evidence, this court does not find that it clearly and convincingly shows that he is actually innocent. The petitioner's ineffective assistance claim and actual innocence claims are both dismissed.


Summaries of

Morgan v. Warden

Connecticut Superior Court Judicial District of Tolland at Rockville
Mar 9, 2006
2006 Ct. Sup. 4383 (Conn. Super. Ct. 2006)
Case details for

Morgan v. Warden

Case Details

Full title:DANIEL MORGAN v. WARDEN, STATE PRISON

Court:Connecticut Superior Court Judicial District of Tolland at Rockville

Date published: Mar 9, 2006

Citations

2006 Ct. Sup. 4383 (Conn. Super. Ct. 2006)