Opinion
No. CV 99-0429974
June 3, 2004
MEMORANDUM OF DECISION RE CONSOLIDATED HABEAS PETITIONS
Petitioner David Kennett presents to this court three habeas petitions which were consolidated and heard. After the hearing, the petitioner and the respondent filed trial memoranda chronicling the history of the proceedings and setting forth their respective legal positions.
I. History of the Proceedings A. Representation at Trial Level
Public defender Peter Scillieri represented David Kennett during his jury trial. At the conclusion of the trial, the jury rendered a verdict on June 22, 1990, finding him guilty of 10 counts of sexual assault in the first degree, two counts of sexual assault in the fourth degree, two counts of kidnaping, two counts of threatening, and one count of interfering with the execution of a search warrant. David Kennett was sentenced on July 24, 1990 to a total effective sentence of 82 years, suspended after serving 54 years, and to five years probation.
The following statements of fact underlie David Kennett's criminal conviction. On the night of April 11, 1989, the petitioner stopped his automobile and offered to give a ride to two young female teenagers, one age 16, the other, age 17. The teenage girls entered his vehicle. He later brandished and threatened them with a knife, which he used to cut off their underwear. After partially binding and repeatedly raping them both vaginally and anally, he at one point ejaculated on one of the victim's buttocks, and forced the other victim to lick up his semen. He also warned the victims that if they informed the police, he would later find and kill them.
B. First Habeas Corpus Petition CT Page 9134
On February 22, 1996 David Kennett filed a habeas corpus petition challenging his conviction. Attorney James Shanley, Jr. was appointed to represent him. In the petition, as amended, by an attorney James Shanley Jr., David Kennett alleged that attorney Peter Scillieri's representation of him at the trial level was ineffective in that
a) he failed to require the court, Koletsky, Jr., to be present in the Courtroom during jury selection;
b) he failed to request DNA testing to establish that the petitioner did not have sexual relations with the victims;
c) he refused to let the petitioner testify;
d) he failed to move for a mistrial when the prosecutor advised the court that the mother of one of the victims had told him that she recognized one of the jurors as someone who knew the victim's father; and
e) he failed to file a motion to compel the State to produce the white sweatshirt worn by the alleged victim, Christina.
This habeas corpus petition was presented to the court, Thomas Corrigan, Judge Trial Referee, who heard the testimony of the petitioner, as well as the testimony of attorney Peter Scillieri. In his Memorandum of Decision, Judge Trial Referee Corrigan reviewed each of the petitioner's complaints of ineffective assistance of counsel.
As to the first challenge, Judge Trial Referee Corrigan found that a judge's presence during jury selection in criminal cases was not required prior to the Supreme Court ruling in the case of State v. Patterson, 230 Conn. 385, 400, and that the Supreme Court ruling is not retroactive. Regarding DNA testing, Judge Trial Referee Corrigan found that there was insufficient substance for the testing. In this regard he noted that there was but one ejaculation and that ejaculation was ordered licked from the buttocks of one of the victims by the other.
The petitioner also asserted that he was prevented from testifying in his own behalf. Judge Trial Referee Corrigan found that the credible evidence is that the petitioner did not want to testify, for fear of "the disclosure of his past criminal record, and the substantial risk that cross-examination would destroy the last vestige of any reasonable doubt that remained in his favor." Memorandum of Decision, p. 4.
Regarding the petitioner's claim that his lawyer should have asked for a mistrial after learning that the mother of one of the victims told the prosecutor that one of the jurors knows the father of one of the victims, Judge Trial Referee Corrigan found that it was never determined that any such juror was acquainted with the victim's father. Furthermore, Judge Trial Referee Corrigan found that that juror was described as an alternate juror who did not participate in the deliberations.
David Kennett's final ground is his claim that attorney Scillieri provided ineffective assistance of counsel by failing to file a motion to compel the State to produce the white sweatshirt worn by the alleged victim, Christina. This court finds that Judge Trial Referee Corrigan found this claim to be of no significance, based upon his finding that the alleged victim admitted in her testimony that which she was not sure if it was a blouse or sweater or sweatshirt, and that they had not changed their clothes before leaving with the police. Memorandum of Decision, p. 5.
Judge Trial Referee Corrigan concludes his memorandum of decision by noting that "[a] successful petitioner must show that there is reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." In denying the petition, Judge Trial Referee Corrigan found that the petitioner failed to show that counsel's representation fell below an objective standard of reasonableness. Id. 5.
Judge Trial Referee Corrigan's decision in this petition was affirmed by the Appellate Court. State v. Kennett, 57 Conn. App. 333 (2000).
II. Claimed Ineffective Assistance of Attorney James Shanley in Handling the Habeas Petition heard by Senior Trial Judge Referee Corrigan in May of 1998David Kennett claims that attorney James Shanley, his public defendant who, as habeas counsel, represented him in the habeas corpus petition heard by Senior Trial Judge Referee in May of 1998, provided substandard legal assistance in that matter. The alleged ineffective assistance includes the claims that attorney James Shanley 1) failed to use adequately a private investigator; 2) failed to adequately cross examine witnesses who testified at the habeas trial; namely, trial counsel Peter Scillieri, regarding factual issues such as the alleged victim's hair in the truck of petitioner's car; 3) failed to make certain objections during the hearing of the petition; 3) failed to have photographs subpoenaed; 4) failed to review petitioner's testimony prior to the habeas hearing; 5) failed to call expert witnesses; 6) and failed to examine Peter Scillieri regarding his not calling an alibi witness, and to correct his testimony regarding the location of a victim's pubic hair in the petitioner's car, as well as admitting or not admitting into evidence a certain photograph of the victim and/or the victim's clothing.
The defendant correctly argues that in reviewing a claim of ineffective assistance of habeas counsel the court must focus upon whether the petitioner has proved both (1) that his habeas counsel (namely, attorney Shanley) was ineffective, and (2) that his trial counsel (namely, Peter Scillieri) also was ineffective. Lozada v. Warden, 223 Conn. 834, 842, (1992).
A. Re Claim of Ineffective Assistance of Attorney Shanley
In his testimony before this court in this second habeas case attorney Shanley stated that he met with David Kennett, and that an investigator was hired who also spoke with David Kennett about the specifics of the case. He reviewed the investigation report from Phoenix Investigations. The report contained a reference to an alibi witness. He stated further that he had no specific memory of David Kennett's habeas case for the reason that his case was among the approximate 100 habeas cases that he tried between 1992 to 1999. However, he stated further that had the investigation report revealed a need for further investigation or action, he would have attended to it. The court finds that the petitioner has not proved that the further use of the investigator would have altered the outcome of his disposition.
In concluding his testimony he stated that he has no recollection of a request for DNA or other forensic testing, and that he kept the petitioner informed of the status of his case on a regular basis. The court finds that any information about the existence and/or whereabouts or lack thereof of alibi witnesses were disclosed by the petitioner at a late date. Furthermore, this court finds that the petitioner has not proved that the alibi witnesses, if found, would have changed the outcome of his trial.
B. Claim of Ineffective Assistance of Attorney Peter Scillieri as Trial Counsel
Although the issue of the claimed ineffectiveness of attorney Peter Scillieri as his counsel in the trial in June of 1990 has been addressed in an earlier section of this Memorandum of Decision, the petitioner testified at this hearing that when he first met with attorney Scillieri he kept matters pretty much to himself, and it was much later that he told him about alibi witnesses. One of the alibi witnesses is named Dave who lives somewhere in Waterbury; another is his brother; and another a waitress. The petitioner has not proved that these witnesses would have established his presence as being elsewhere at the time of the assault in this case.
At this hearing the petitioner admitted being with the victims on the night in question, and that one of his pubic hairs was found on the pant leg of one of the victims. Regarding his claim that attorney Peter Scillieri's performance was deficient in that he did not obtain a review of the DNA in the semen, this court accepts Judge Referee Corrigan's disposition of this issue as articulated in his decision.
A review of the photograph showing one of the victims in a torn sweater does not reveal how a photographic challenge would have aided the petitioner's cause.
Conclusion Re Ineffective Assistance of Habeas Counsel
As reviewed earlier in addressing this claim, to succeed "the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective." Lozada v. Warden, 223 Conn. 834, 842.
A convicted defendant's claim that counsel 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. (Quoting inter alia Strickland v. Washington, 466 U.S. 668, 687.)
Id. 842.
This court finds that the petitioner has not met his burden on this claim.
II. Representation at Appellate Court Level
Attorney Peter Scillieri represented David Kennett in an appeal of the conviction to the Appellate Court. The only issue raised in the appeal was that there was insufficient evidence to support one of the first-degree sexual assault charges. The Appellate Court affirmed the convictions. State v. Kennett, 25 Conn. App. 801 (1991).
Claimed Ineffective Assistance of Attorney Peter Scillieri in Handling Petitioner's Appeal to Appellate Court
David Kennett asserts that attorney Peter Scillieri provided ineffective assistance of counsel at the appellate level statement of facts in support of his claim he states the following:
Peter Scillieri could have raised any number of objections on appeal that could have been successful in getting a new trial
Appellate counsel never consulted with me prior to filing an appeal. Appellate counsel never furnished me with a copy of the appellate brief.
During the trial of this habeas case before this court attorney Peter Scillieri testified that he appealed the conviction on Count 10 only because it was his opinion that that count presented the only nonfrivoulous issue in the case. He testified that that count addressed oral intercourse, and in his opinion insufficient evidence existed to support this count. As to consulting with his client, attorney Scillieri testified that he is certain that he reviewed the matter of the appeal with petitioner David Kennett prior to filing the appeal.
The standard by which to assess a petitioner's claim of ineffective assistance of counsel is expressed in the following quotation from Bunkley v. Commissioner of Correction, 222 Conn. 444 (1992).
In Strickland v. Washington, supra, 671, the United States Supreme Court "considered the proper standards for judging a criminal defendant's contention that the Constitution requires a conviction . . . be set aside because counsel's assistance at the trial . . . was ineffective." In the context of a claim of ineffective assistance of trial counsel, the court held that such a contention "has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., 687.
Id. 455.
A review of the evidence presented does not show that attorney Peter Scillieri committed an error in the handling of the appeal. Although the petitioner also raised the issue of the trial judge not being present in the Courtroom during jury selection, a judge's continuous presence in the courtroom throughout the entirety of jury selection was not required until the Supreme Court issued its ruling in State v. Patterson, 230 Conn. 385, in 1994, three years after the petitioner's conviction.
In its decision in State v. Patterson, released on July 26, 1994, the Supreme Court noted that the presence of the trial judge may be waived by a defendant allowing the judge to appear in court during jury selection to respond to prospective juror challenges, and then not protesting the judge's leaving the court room to attend to other judicial business. Nevertheless, the Supreme Court issued the following ruling under its supervisory power:
Despite our conclusion that the defendant validly waived continuous judicial supervision of the voir dire in this case, we now hold, under our supervisory power over the courts, that henceforth the judge is required to remain on the bench throughout the voir dire of a criminal trial.
Id. 397.
The court finds that the petitioner has not shown that he protested the absence of the trial judge during jury selection, and finds that he waived continuous judicial supervision of voir dire in his trial.
The petitioner also argues that attorney Peter Scillieri committed appellate error by not consulting with him prior to filing the appeal. Attorney Scillieri testified that he discussed with the petitioner the issues which the latter thought should be raised on appeal. (Transcript, p. 100) As to this issue the court finds that the petitioner has not proved his claim that attorney Scillieri did not discuss appellate issues with him prior to filing the appeal.
Conclusion as to Claim at Appellate Level
As argued by the defendant in this case, the court finds that the petitioner has presented no evidence of additional issues that appellate counsel could have pursued successfully. The court further finds that the petitioner has not shown that attorney Peter Scillieri was ineffective in his handling of the appeal to the Appellate Court.
For the foregoing reasons, the Amended Habeas Petition in this case is denied.
Clarance J. Jones, Judge