Opinion
CV124004474S CV124004494S
09-27-2018
Ryshon WELLS v. WARDEN, STATE PRISON
UNPUBLISHED OPINION
OPINION
Sferrazza, J.
In these consolidated habeas cases, the petitioner, Ryshon Wells, seeks habeas corpus relief from five years incarceration effectuated for violating a probation that had been imposed for robbery first degree on July 9, 2002. The petitioner appealed the judgment revoking his probation, and the Appellate Court dismissed his appeal, in part, and affirmed the trial court, in part, State v. Wells, 112 Conn.App. 147 (2009).
Also, the petitioner was convicted, after a jury trial, of the criminal offenses that constituted the violation of his probation. He received a total, effective sentence of six years imprisonment, consecutive to the violation of probation disposition, for the crimes of carrying a pistol without a permit; criminal possession of a firearm; and interfering with a police officer. The Appellate Court also affirmed that judgment of conviction, State v. Wells, 111 Conn.App. 84 (2008); cert. denied, 289 Conn. 958 (2008).
As to the jury verdict, the Appellate Court summarized the supporting evidence as follows:
"On March 26, 2006, the Bridgeport police were notified that a shooting had occurred in Bridgeport. Upon commencing an investigation, the police identified the defendant as a suspect. Once the defendant was located, he was notified by the police to stop and put his hands up. The defendant instead reached into his waistband, removed a gun, dropped that gun onto the sidewalk and immediately fled the scene. Soon thereafter, the police apprehended the defendant and recovered the gun." State v. Wells, supra, 86.
The petitioner asserts that his defense counsel, Attorney Lisa Bennett and Attorney Dennis Harrigan, provided ineffective assistance at his criminal trial in the following specific ways:
1. By failing to move to suppress introduction of the firearm seized by the Bridgeport police, which was the corpus delicti of the weapons charges; 2. By failing to have a defense expert examine the seized weapon for fingerprints, or a lack thereof; and 3. By inadequate investigation and cross examination of prosecution witnesses.
Our Supreme Court had adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, that his attorney’s performance was substandard and that there exists a reasonable likelihood that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that habeas counsel’s representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra .
This standard of reasonableness is measured by prevailing, professional practices. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel’s conduct from that attorney’s perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel’s competence. Pelletier v. Warden, 32 Conn.App. 38, 46 (1993). In order to satisfy the prejudice prong of Strickland test, the petitioner must prove that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640 (1985). Reasonable probability means a probability sufficient to undermine confidence in the outcome. Daeira v. Commissioner, 107 Conn.App. 539, 542-43 (2008), cert. denied, 289 Conn. 911 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id.
The only witnesses testifying at the habeas trial were the petitioner and Bridgeport Police Officer Mark Martocchio. As a result, no legal expert testified about any purported professional deficiencies exhibited by defense counsel. Nor did a fingerprint expert testify regarding the absence or presence of the petitioner’s fingerprints on the pistol in question. Habeas counsel conceded during final argument that the petitioner’s habeas claims fail if the initial seizure of the petitioner’s person was lawful.
Lawfulness of Arrest
Under the federal constitution, one cannot contend that the seizure of evidence by the police that the possessor has abandoned, such as by discarding items during a police chase, is unlawful even though the basis for apprehending or attempting to apprehend the possessor and subsequent pursuit was, itself, unconstitutional, California v. Hodari, 499 U.S. 621, 623-24 (1991). However, our Supreme Court rejected the reasoning of Hodari, supra, and held that our state constitutional prohibitions against unreasonable searches and seizures afforded greater protection than does its federal counterpart, State v. Oquendo, 233 Conn. 635 (1992).
In Oquendo, supra, our Supreme Court ruled that, if the initial stop was legally unjustified, a defendant’s nearly contemporaneous disposal of contraband is to be considered "induced by an illegal seizure of his person," Id., 657. Therefore, the property recovered is treated as the tainted fruit of a poisonous tree and is inadmissible, in the absence of certain intervening circumstances, Id., 658-59.
On the other hand, if the police confrontation and attempt to stop the defendant was lawful, then the hasty discarding of property is constitutionally seizable and admissible evidence against the defendant at a criminal trial, Id., 658.
At the petitioner’s criminal trial, defense counsel never sought suppression of the pistol. It remains the petitioner’s burden to prove that such a motion had a reasonable probability of success in order to prove either prong of the Strickland standard.
Bridgeport Police Officers Vincent LaRiccia, Mark Martocchio, Detectives John Tenn. and Sanford Dowling, and Sergeant Steven Lougal testified at the criminal trial. Officer Martocchio also testified at the habeas trial. Their testimony showed that the Bridgeport police received report(s) of gunfire in the Iranistan Avenue section of the city. Office LaRiccia soon thereafter met with the person claiming to have been the target of the shooting and another witness. They described a vehicle that was connected to the suspects and described the suspects as three Hispanic males and one black male.
The police quickly stopped a vehicle matching the witnesses’ description and arrested two Hispanic men. The putative victim identified these men as being part of the group that had fired upon him. These two men then informed the police that their black male companion was the petitioner and that he was the actual shooter. Based on this disclosure, the police obtained a mug shot of the petitioner and formed an apprehension team that included Sergeant Lougal and Office Martocchio along with a police dog trained to secure fleeing suspects.
A confidential informant revealed to Detective Fiumidinisi that he/she could telephone the petitioner and pinpoint his location. Detective Fiumidinisi approved this ploy which proved successful. Detective Fiumidinisi relayed the petitioner’s expected whereabouts to the apprehension team who were traveling in an unmarked van.
The team drove to the intersection of Trumbull Avenue and Terrace Circle and spotted a person comporting with the photograph of the petitioner. The van drove to within ten feet of the petitioner and his identity was visually confirmed. The team members, wearing police apparel, quickly exited the van, and Officer Martocchio shouted for the petitioner to stay put. Instead, the petitioner turned and ran away. As he began his flight, the police officers saw the petitioner remove a handgun from his waistband and drop it on the ground. The police dog was released and eventually subdued the petitioner. The discarded pistol was photographed and seized.
As noted above, the parties concur that if the police had probable cause to arrest the petitioner at that time, the seizure of the pistol was lawful. The court holds that to be the situation here.
By virtue of General Statutes § 54-1f(b) the Bridgeport police officers were vested with the authority to arrest the petitioner, without a warrant, as long as they had "reasonable grounds" to believe he had committed a felony. Also, by virtue of § 54-1f(a), they possessed similar power to arrest him for misdemeanors because they acted upon speedy information. The time between the report of gunfire and petitioner’s arrest was about one hour.
Shooting a gun at someone may comprise attempted assault first degree or second degree, both felonies. Such an act may also violate a host of misdemeanor laws, including first or second degree reckless endangerment. For purposes of defining the arrest power conferred by § 54-1f, "reasonable cause" is equivalent to "probable cause," State v. Wilson, 153 Conn. 39, 41 (1965).
Thus, the key issue becomes whether the police had probable cause to arrest the petitioner for his involvement in a shooting. If so, then defense counsel had no legitimate grounds to press a motion to suppress nor was the petitioner prejudiced by the lack of such a motion.
"Probable cause ... comprises such facts as would reasonably persuade an impartial and reasonable mind ... to believe that criminal activity has occurred," State v. Houghtaling, 326 Conn. 330, 355-56 (2018). The believable circumstances within the knowledge of the police must exceed mere suspicion, State v. Glenn, 251 Conn. 567, 576-77 (1999). But that knowledge can be less than a showing of a preponderance of the evidence, State v. Johnson, 286 Conn. 427, 435 (2008); and can be substantially less than that needed to convict, State v. Houghtaling, supra, 356.
The probable cause determination is a product of a nontechnical and flexible exercise of common sense, J.K. Scanlon v. Construction Group, Inc., 80 Conn.App. 345, 350 (2003). It can be based on hearsay, State v. DiMeco, 128 Conn.App. 198, 201-04, fn4 (2011). Most importantly, "it is not the personal knowledge of the arresting officer, but the collective knowledge of the law enforcement organization at the time of the arrest that must be considered," State v. Houghtaling, supra, (emphasis added).
The petitioner denies ever possessing the pistol or dropping it. However, his version of events is essentially irrelevant as to the existence of probable cause at the time the police sought to arrest him. "Inherent in the concept of probable cause is that the factual basis ... may be inaccurate," State v. Glenn, supra, 576. The material question is whether it was reasonably appropriate for the police to accept the information they possessed as reliable and trustworthy, Id. Probable cause "may be founded upon hearsay and upon information received from informants, as well as upon information within the [officers’] own knowledge that sometimes must be garnered hastily," Id.
In this case, the police received report(s) of shots fired. The gunplay was corroborated by the alleged target of the shooting and another witness. They provided descriptions of the assailants and a description of the vehicle sufficient to locate it. The two occupants of the vehicle confirmed their presence at the scene of the shooting and implicated one of their companions as the shooter. The confidential informant was able to arrange for the police to know where the petitioner might be found, and the police arrest team verified this prediction. Clearly, the collective knowledge of the police department established that it was reasonable to conclude that the petitioner had engaged in various criminal acts before they captured him and before he discarded the item the police recovered.
Defense counsel’s legal assistance is presumed to be professionally sufficient in the absence of evidence to the contrary. The petitioner’s contention that his lawyers performed deficiently by failing to file a motion to suppress lacks evidentiary support and is meritless.
The court denies habeas corpus relief.