Opinion
No. CV 00-800829 S
April 29, 2003
MEMORANDUM OF DECISION
This is a habeas petition brought in three counts. The First Count claims ineffective assistance of trial counsel, the Second count claims ineffective assistance of counsel for sentence review, and the Third Count claims ineffective assistance of Appellate counsel.
Prior to the commencement of the actual habeas trial in this matter on January 15, 2003, the parties stipulated that the failure to apply for sentence review was neither the fault of the Petitioner nor his attorney and that his right to apply to sentence review should be restored. Accordingly, this Court hereby enters judgment for the Petitioner, John Vivo III, (hereinafter "Petitioner") on the Third Count. His right to sentence review is hereby restored.
The basic facts of this case are not in dispute. On or about February 23, 1994, three males entered an apartment at the Evergreen Apartments in Bridgeport, Connecticut and fired gun shots at a male victim who was fatally shot and at a female victim, Yolanda Martinez (hereinafter also "Martinez") seriously wounding her. She survived and testified at probable cause hearings and at two trials of the Petitioner that he was one of the individuals who had fired the shots. Later that evening officers of the Bridgeport Police knocked on the door of the apartment of the Petitioner, who answered it and permitted the officers to enter. Shortly thereafter, he was arrested and handcuffed. He was subsequently charged with one count of Murder, one count of Assault in the First Degree, and one count of the Commission of an A and B Felony with a Firearm. On or about October 6, 1995, the Petitioner was found guilty on all three counts following a trial by jury before Judge Joseph T. Gormley, Jr. (hereinafter "Gormley, J."). On December 1, 1995, Gormley J. sentenced the Petitioner to serve a sentence of 60 years for Murder, 10 years for Assault in the First Degree and 5 years for Commission of an A and B Felony with a Firearm. Judge Gormley ordered that Counts Two and Three run consecutively to Count One for a total effective sentence of 75 years to serve. The Petitioner's direct appeal to the State Supreme Court was denied on July 15, 1997, State v. Vivo, 241 Conn. 665 (1997). Prior to the aforementioned trial, there was another trial with the same charges which ended in a hung jury. At all relevant times, the Petitioner was represented at trial and on his appeal by Attorney Dante Gallucci (hereinafter also "Gallucci").
Judge Gormley did not make a finding of fact as to exactly when the Petitioner was handcuffed and arrested nor a finding of fact as to whether a search was conducted prior to the arrival of the search warrant.
STANDARD OF REVIEW
The "right to counsel is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984). In Strickland v. Washington, supra, the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: The defendant must show: (1) that counsel's representation fell below an objective standard of reasonableness, id. 687-88; and (2) that defense counsel's deficient performance prejudiced the defense, id. 694. As for the second prong of Strickland supra, the Petitioner is required "to demonstrate that there is a reasonable probability that the result of the proceedings would have been different had it not been for counsel's deficient performance. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Copas v. Commissioner of Correction, 234 Conn. 139, 154-55 (1995).
The Court bases much of its decision on the credibility of the witnesses; namely their demeanor on the witness stand, their ability to recall certain events, the consistency or inconsistency of their statements or testimony, the manner in which they responded to questions on cross-examination as well as direct examination, the conflict of their testimony with other testimony and the other evidence in the case, including the exhibits, and the overall reliability of their testimony.
The habeas trial was held on January 15, 2003. The parties then filed post-trial briefs.
ISSUES
1. WAS TRIAL COUNSEL'S REPRESENTATION AT TRIAL INEFFECTIVE ASSISTANCE OF COUNSEL?
In his brief Petitioner abandoned his claim in the First Count. However, in order to prevent a claim that Petitioner had not wanted this claim to be abandoned, this Court will decide the issue raised in the First Count.
Attorney Gallucci did make a motion to suppress the search of the Petitioner's apartment. The motion was denied by Judge Gormley. There was no claim that Attorney Gallucci was ineffective in arguing the motion to suppress.
The main claim in the First Count, that trial counsel was ineffective, centers around the closing remarks of State's Attorney Robert Satti (hereinafter "Satti"). The pertinent part of his closing argument is as follows:
Now additionally there's a second example of what the state would submit was a prior inconsistent statement, and that comes from the testimony of Inspector Lengyel that you just heard here now.
The defendant was asked by me I believe on cross examination, Did you tell the police that you didn't want them searching the apartment? He said, No. Inspector Lengyel said, He said yes. And I have to decide what motives one might have to color their testimony; to answer that way; and what does it mean? Additionally the state is proposing to you that not only shows you a prior inconsistent statement on the part of the defendant, ladies and gentlemen, but it shows a consciousness of guilt on his part . . .
Gallucci testified at the habeas trial that if Satti said that the defendant told the police that he didn't want them to search his apartment and that shows a consciousness of guilt on his part, that would have been objectionable, and he would have objected. However, he did not object in part because he believed that Attorney Satti was referring to inconsistent statements showing a consciousness of guilt, and that would have been proper. Taking the two paragraphs together, this Court finds that Satti was referring to prior inconsistent statements as showing a consciousness of guilt. The first paragraph talks about a prior inconsistent statement and a second example of it which was from the testimony of Inspector Lengyel. Satti points out that the inconsistencies are that the defendant told him on cross-examination that he did not tell the police that he didn't want them searching the apartment. On the other hand, Inspector Lengyel testified that the defendant said, "yes" to whether he told the police that he didn't want them searching the apartment. Satti cited this as an inconsistent statement, inconsistent in that he told Satti one thing and Inspector Lengyel the opposite. The question was asked and the comment later made in regard to the inconsistency of the statements, not a refusal to permit the police to search his apartment. That was used only as an example of the inconsistent statements. This is clear from the first paragraph quoted herein. It is the inconsistent statements on the part of the defendant that Satti claimed shows a consciousness of guilt. There is nothing improper about that, and there was no reason for Gallucci to object to that part of Satti's closing remarks. From Gallucci's testimony which was not really contradicted on this particular issue of the closing remarks of Attorney Satti, this Court cannot find that Attorney Gallucci was ineffective in his representation of the Petitioner. Accordingly, the Petitioner has not sustained his burden of proving the First Count.
The Petitioner's witness, Conrad Seifert, to be identified, testified (page 96 of Habeas Transcript) (hereinafter "HT") that it was improper for Satti to use in his closing argument consciousness of guilt and tying it in with the jury instruction from the judge. However, during the habeas trial Attorney Seifert and Petitioner's counsel were unable to show the Court in the transcript of the trial where Satti made the comment that the judge would instruct the jury on consciousness of guilt.
2. WAS APPELLATE COUNSEL (GALLUCCI) INEFFECTIVE?
The Petitioner presented at the habeas trial Attorney Conrad Seifert as his expert witness whom the Court qualified as an expert in appellate work, criminal litigation as a defense counsel and as a habeas counsel. This Court has had personal observation of Attorney Seifert in that he was the Petitioner's counsel in a trial before this Court in the matter of Leonard Toccaline v. Commissioner of Correction and was successful in that this Court granted the habeas petition.
First, a little factual background on the issue before the Supreme Court: The issue involves the search of the Petitioner's premises by the Bridgeport Police. The police arrived at the Petitioner's apartment, knocked on the door and he allowed them to enter. Because they had the testimony of Yolanda Martinez identifying the Petitioner as one of the shooters, they quickly arrested the Petitioner and handcuffed him. Then, the officers allegedly looked through his apartment and opened some drawers including one that held a bag of bullets which bullets were later claimed at trial to be similar to the bullets found during the autopsy and/or the bullets taken from the body of Yolanda Martinez. The weapon was never found, but the bullets found in the apartment were the same type used in the shootings. Shortly after the search began, an officer stated that everything should be put back while they wait for a search warrant. A valid search warrant was subsequently obtained and the bullets and other materials were seized from the Petitioner's apartment. As stated earlier, Judge Gormley denied the motion to suppress. He based his decision on the "inevitable discovery doctrine," which in essence says that although the warrantless search when the police first arrived was illegal, the material seized is admissible because it inevitably would have been discovered by virtue of the search warrant. Attorney Seifert concedes that this issue of the search was competently done by Appellate counsel in his brief which enabled the issue to be brought before the Connecticut Supreme Court which did entertain the issue. However, the issue was briefed on the basis of the United States Constitution and not the Connecticut Constitution. Attorney Seifert stated: "However, it is my opinion that his Appellate attorney was nevertheless ineffective due to the failure to brief the same issue under the Connecticut Constitution Article One, Section 7. Because Article One, Section 7 affords greater constitutional protection than the United States Constitution." (HT 47). Attorney Seifert cited three cases from the State Supreme Court to underscore his claim, namely: State v. Marsala, 216 Conn. 150 (1990) and State v. Marsala, 225 Conn. 10 (1993); State v. Geissler, 25 Conn. App. 282 (1991); and State v. Miller, 227 Conn. 363 (1993). Attorney Seifert stated that the facts of the case at bar are different from Marsala, Geissler and Miller. He testified that Marsala and Miller were both automobile cases which is a special class ". . . so it's not really very applicable to a residence . . . Geissler deals with one's residence, and is looking at the so-called exigent circumstances or emergency doctrine exception. That's different, again, from the Vivo case because the search of his apartment was not based on an alleged emergency or exigent circumstances." Attorney Seifert then went on to say that the main difference between the Federal cases and the Connecticut cases is that the Federal law allows for a good faith exception to an unlawful search whereas Connecticut refuses to apply this exception. However, this is not an issue of a good faith exception. The good faith exception is to the exclusionary rule which excludes evidence seized by an illegal search and it is true that Connecticut does not recognize the good faith exception permitted under federal law. Attorney Seifert stated that there is more protection under the Connecticut Constitution than under the Federal Constitution.
The bottom line regarding Attorney Seifert's opinion is that he stated that this specific issue, on the inevitable discovery or the independent source doctrine which Attorney Seifert claims are very closely linked were brought up before the State Supreme Court citing Federal law but not Connecticut law, and he believes that based upon the State Supreme Court's rulings on the cases cited that these issues might have been decided in favor of the Petitioner if the Connecticut Constitution had been cited. Attorney Seifert finally conceded that if the Connecticut Constitution had been cited, it still is "an open question" as to whether or not the bullets would have been suppressed (HT 94). In effect, Attorney Seifert was saying that he doesn't know what the State Supreme Court would have decided even if the Connecticut Constitution had been cited. This Court, therefore, concludes that what the Supreme Court would have decided is pure speculation. Accordingly, the Petitioner has not met, through Attorney Seifert's testimony, the second prong of Strickland which is that if Attorney Gallucci had not overlooked citing the Connecticut Constitution, the result of the proceeding would probably have been different.
Counsel for the Respondent claimed during his questioning of Attorney Seifert that even if the issue of the Connecticut Constitution had been raised, the Supreme Court would not have ruled in favor of the Petitioner because both Judge Gormley and the Supreme Court made their decisions based upon an assumption of fact as to what took place concerning the search but did not make a finding of fact. The trial court and the Supreme Court both believed that under Federal law the search by warrant was not illegal even if the assumption were true. In his decision on the motion to suppress, Judge Gormley stated in pertinent part: "It may well have been that during the course of that initial search and before the warrant was received that some officers may have looked into drawers and may have found bullets and/or the mask, although I didn't hear the testimony of any particular officer who may have done that. And the evidence is somewhat equivocal on that subject. But for the purposes of this motion I am willing to assume that that may have happened or did happen." (Emphasis added). Petitioner's Exhibit 2, page 9g. Therefore, it was clearly an assumption by Judge Gormley, and not a finding of fact, that a search prior to the warrant was conducted. Based upon that, this Court cannot find a factual basis for concluding that under the Connecticut Constitution the Petitioner would have prevailed. This Court cannot make a finding of fact when the trial court did not do so. Nothing can be construed from the assumptions by both the trial court and the Supreme Court because the finding, particularly by the Supreme Court, was based upon Federal law which was against the Petitioner. If in fact the Connecticut Constitution had been cited by Appellate counsel, it is very possible that the search would still have been upheld because of a lack of finding of fact as to the allegedly illegal search prior to the issuance of a warrant. Accordingly this Court cannot find that Appellate counsel was ineffective.
As Respondent stated in his brief, in order to show that Appellate counsel was ineffective ". . . the Petitioner must demonstrate that his counsel was required to break new ground and create new law. This would go beyond the range of competence of his fellow lawyers." This Court agrees.
3. DID THE PETITIONER SUSTAIN HIS BURDEN OF FULFILLING THE SECOND PRONG OF STRICKLAND SUPRA?
The second prong of Strickland, as aforementioned, states that the Petitioner must prove that if it were not for the alleged ineffectiveness of counsel, the result would probably have been different. This Court has no evidence on which to base such a finding. It has already found that Attorney Gallucci was not ineffective either as trial counsel or as Appellate counsel. Moreover, there was sufficient evidence to offset any ineffectiveness of trial counsel, namely the eyewitness testimony of the victim, Yolanda Martinez. Also, for the reasons stated above, there is no proof that even if Appellate counsel were ineffective in not raising the Connecticut Constitution that the result probably would have been different. It is pure speculation as to what the Supreme Court would have decided and even if the search were suppressed, there still would have been the eyewitness testimony of the victim which alone could have convicted the defendant.
CONCLUSION
For the foregoing reasons, the petition for habeas corpus is denied.
As part of Petitioner's appeal from this decision, there is a remote possibility that the underlying issue in Count Three could reach the State Supreme Court.
Rittenband, JTR