Opinion
CV134005339S
10-31-2017
Thomas E. Bonilla #202050 v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Dawne G. Westbrook, J.
The petitioner, Thomas Bonilla, initiated this petition for a writ of habeas corpus, claiming that his state and federal constitutional rights to effective assistance of counsel were violated by his trial counsel, and that his due process rights were violated by the state's failure to disclose material evidence favorable to the petitioner. The petitioner seeks an order from the court directing the criminal court to vacate his convictions and release him from confinement. On the day of the habeas trial, the petitioner, through counsel, orally withdrew count two of his complaint which alleged that his trial counsel was ineffective for failing to present evidence of the defense of duress. The court heard evidence on July 12, 2017. Having considered the credible evidence, which included testimony by four witnesses and four exhibits, and the arguments of the parties, the court denies the petition.
I
PROCEDURAL HISTORY
The petitioner stands convicted, after a jury trial, of one count of murder in violation of General Statutes § § 53a-8 and 53a-54a, and one count of felony murder in violation of General Statutes § 53a-54c. Attorney Leonard Crone represented the petitioner at trial. On July 12, 2012, the petitioner was sentenced to a total effective sentence of sixty years of imprisonment. The petitioner's convictions were affirmed on direct appeal. State v. Bonilla, 317 Conn. 758, 120 A.3d 481 (2015). The following findings of the Supreme Court are relevant to a disposition of the instant petition:
On the evening of April 10, 1998, the defendant and his brothers, Noel Bermudez and Victor Santiago, were celebrating their reunion after a long period apart. The brothers' celebration initially entailed driving around Waterbury, drinking liquor, and snorting heroin. At some point during the evening, the defendant noticed that Bermudez was carrying a gun--which did not surprise him, because Bermudez always carried a gun.
Eventually, Santiago suggested that the brothers should rob Freddy Morales, the owner of a bar in Waterbury. In proposing this robbery to his brothers, Santiago explained that he had been stalking Morales, and believed that Morales would be carrying lots of money after closing up his bar that night. The defendant knew that Santiago had a long-standing grudge against Morales because, a few years prior, Morales had shot Santiago during a fight at that same bar. Santiago still bore scars from that shooting on his neck. Although the defendant expressed some reluctance, he ultimately went along with this plan " because of how [his] family rolls . . ."
Santiago drove his brothers to the street where Morales lived. Bermudez and the defendant exited the car, and then waited nearby for Morales to return home from his bar. Approximately fifteen minutes later, they saw Morales. Bermudez sneaked up behind Morales on foot, while the defendant stayed back about " ten to fifteen feet . . . to look out in case something went wrong." Bermudez then demanded that Morales give up his money, pointed a gun at his chest, and shot him twice. After Bermudez grabbed a bank bag from the coat Morales was wearing, he and the defendant took off running to the getaway car, and Santiago drove them away. By the time emergency personnel responded to the scene of the shooting, Morales was dead.
Immediately after the shooting, the three brothers went to Santiago's house. Santiago's wife, Damaris Algarin-Santiago, came downstairs and saw the three brothers sorting through a pile of cash and checks on her coffee table. Bermudez told Algarin-Santiago that he had shot Morales, which the defendant quickly followed upon by threatening Algarin-Santiago, stating, " if you say anything . . . I'm going to kill you and kill your mother." The defendant asked Algarin-Santiago to deposit the stolen checks in her banking account, but Algarin-Santiago refused, and so one of the brothers burned the checks. The brothers continued destroying evidence by burning their clothes and cleaning the getaway car. Thereafter, Santiago and Algarin-Santiago left the house, and Santiago disposed of the disassembled murder weapon in three different locations. The night concluded when Santiago and Algarin-Santiago returned home and the brothers concocted an alibi.
The murder remained unsolved for more than a decade. By April 2010, however, Santiago and Algarin-Santiago were estranged, and the latter gave information about the murder to the police. On April 11, 2010, the police arrested the defendant for his involvement with the murder. The defendant then gave a detailed statement about the murder to the police.State v. Bonilla, supra, 317 Conn. 760-62.
The petitioner initiated the present habeas petition on April 1, 2013. In his petition, last amended on February 24, 2015, the petitioner claims that his trial counsel, Attorney Crone, was ineffective in: (1) failing to raise the defense of voluntary intoxication; (2) failing to advise the petitioner to take a five-year deal; and (3) failing to effectively present evidence during a motion to suppress hearing. The petitioner further alleges that his due process rights were violated pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), based on the state's alleged failure to disclose that one of the lead detectives in the case, Detective George Tirado, was under investigation for crimes of dishonesty.
A trial was held on July 12, 2017, at which the petitioner called Attorney Christopher Mattei, State's Attorney Terence D. Mariani, Jr., Attorney Leonard Crone and himself as witnesses. Both parties presented exhibits to the court, including the transcripts from the prior proceedings, health center clinical records and the petitioner's mittimus.
II
DISCUSSION
A
Ineffective Assistance of Counsel
" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States Constitution and by article first, § 8, of the Connecticut Constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, at 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
" To satisfy the performance prong, a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, at 466 U.S. at 687. " It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the 'counsel' guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, at 466 U.S. 689.
Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012). Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, at 466 U.S. 686.
1
Intoxication Defense
The petitioner first alleges that Attorney Crone was ineffective for failing to present evidence of a voluntary intoxication defense. The petitioner failed to sustain his burden of establishing either deficient performance or prejudice as to this claim.
The court notes that intoxication is not a defense to a criminal charge, but it may be offered by a defendant to negate an element of the crime charged. General Statutes § 53a-7 provides in relevant part: " Intoxication shall not be a defense to a criminal charge, but in any prosecution for an offense evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged . . . As used in this section, 'intoxication' means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body."
At the habeas trial, Attorney Crone testified that his chosen theory of defense was a mere bystander defense. Attorney Crone further testified that he developed this strategy with the petitioner's assistance after the available evidence revealed that the petitioner did not plan the robbery that resulted in the murder, he was not the getaway driver, and he was not the shooter, or even armed, when the incident occurred. Attorney Crone testified that he was very familiar with the intoxication defense because he represented the co-defendant in State v. Morales, 71 Conn.App. 790, 804 A.2d 902, cert. denied, 262 Conn. 902, 810 A.2d 270 (2002), a seminal case outlining the prerequisites of the defense. Attorney Crone also testified that the petitioner told him that he had been drinking alcohol and using heroin on the night of the incident, but he did not seriously consider an intoxication defense because he did not believe it was a viable defense under the facts of the case. He also indicated that to pursue that theory the petitioner would need to testify, and the petitioner was not going to take the stand at his criminal trial. The petitioner testified at the habeas trial, indicating that on the night of the shooting, he was high on heroin and had been drinking alcohol all day.
The petitioner's claim that Attorney Crone should have raised the intoxication issue is directed at counsel's trial strategy. " [S]trategic choices made after thorough investigation of [the] law and facts relevant to plausible options are virtually unchallengeable." (Internal quotation marks omitted.) Crocker v. Commissioner of Correction, 126 Conn.App. 110, 131, 10 A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d 333 (2011). " [J]udicial 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 . . .
" [T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment . . . It is well established that [a] reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time." (Internal quotation marks omitted.) Coward v. Commissioner of Correction, 143 Conn.App. 789, 800-01, 70 A.3d 1152, cert. denied, 910 Conn. 905, 75 A.3d 32 (2013). Attorney Crone's decision not to present evidence of the petitioner's intoxication " falls into the category of trial strategy or judgment calls that we consistently have declined to second guess." (Internal quotation marks omitted.) Crocker v. Commissioner of Correction, supra, 126 Conn.App. 132. This court credits Attorney Crone's testimony that the decision not to argue intoxication was a matter of trial strategy, and thus the petitioner failed to demonstrate that counsel's actions were unreasonable under the facts of this case. The petitioner has not overcome the presumption that Attorney Crone's decision might be considered sound trial strategy given the circumstances. Therefore, the petitioner has failed to demonstrate that Attorney Crone's performance was deficient when he failed to present a defense of intoxication.
Moreover, there is no evidence that presenting evidence of intoxication would have changed the outcome of the proceedings. Aside from the petitioner's testimony, there is no evidence establishing the petitioner's intoxication at the time of the murder, such as evidence of the petitioner's blood alcohol level or testimony by a toxicologist. Without evidence of this nature, the petitioner also failed to prove that he was prejudiced by any alleged deficiency in Attorney Crone's performance. As a result, this claim is denied.
2
Plea Offer
The petitioner next alleges that Attorney Crone was ineffective for failing to properly advise the petitioner to accept a five-year plea offer prior to the commencement of trial. The petitioner also failed to sustain his burden of establishing either deficient performance or prejudice with respect to this claim.
The petitioner also referenced a twenty-five-year plea offer at trial, but there is no claim in the habeas petition relating to Attorney Crone's representation regarding that offer.
The United States Supreme Court has held that pretrial negotiations implicating the decision as to whether to plead guilty is a critical stage in criminal proceedings for purposes of the sixth amendment right to effective assistance of counsel. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). " In today's criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always a critical point for a defendant." Missouri v. Frye, supra, 566 U.S. 144. Similarly, " our Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings." (Internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 122 Conn.App. 705, 723 n.4, 1 A.3d 170 (2010), aff'd, 308 Conn. 463, 68 A.3d 624 (2013). The decision to plead guilty is " ordinarily the most important single decision in any criminal case." (Internal quotation marks omitted.) Peterson v. Commissioner of Correction, 142 Conn.App. 267, 273, 67 A.3d 293 (2013). Because the plea bargaining process is a critical stage in a criminal proceeding, " criminal defendants require effective assistance of counsel during plea negotiations." Missouri v. Frye, supra, 566 U.S. 144; see Lafler v. Cooper, supra, 132 S.Ct. 1385. " Anything less . . . might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him." (Internal quotation marks omitted.) Missouri v. Frye, supra, 566 U.S. 144.
" Although this decision [to plead guilty] is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial." (Internal quotation marks omitted.) Peterson v. Commissioner of Correction, supra, 142 Conn.App. 273.
In Missouri v. Frye, supra, 566 U.S. 134, the United States Supreme Court held that: " defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Id., 145. " To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time. Cf. Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001) ('[A]ny amount of [additional] jail time has [s]ixth [a]mendment significance')." Missouri v. Frye, supra, 566 U.S. 147; see also Ebron v. Commissioner of Correction, 307 Conn. 342, 357, 53 A.3d 983 (2012) (to show prejudice in lapsed plea case, petitioner must establish: " (1) it is reasonably probable that, if not for counsel's deficient performance, the petitioner would have accepted the plea offer, and (2) the trial judge would have conditionally accepted the plea agreement if it had been presented to the court"). " In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented." Missouri v. Frye, supra, 566 U.S. 148.
In the instant matter, all of the credible evidence adduced at the habeas trial clearly demonstrates that the petitioner would not have accepted the five-year plea offer from the prosecuting authority. Attorney Crone testified at the habeas trial that he presented a five-year plea offer to the petitioner contingent upon the petitioner's testimony against his half-brother. Attorney Crone further testified credibly that he explained the offer extensively to the petitioner, discussing the pros and cons of accepting the deal and the strengths and weaknesses of the state's case against him if he went to trial, particularly the petitioner's written statement to the police. Attorney Crone also testified that he strongly advised the petitioner to accept the deal, but the petitioner was adamant against testifying in his half-brother's trial. The petitioner also testified at the habeas trial that Attorney Crone advised him to take the deal and testify against his half-brother, but he refused to do so.
As a result, the court finds that Attorney Crone properly advised the petitioner regarding the plea offer, and therefore his conduct did not constitute deficient performance. Furthermore, it is not reasonably probable that the petitioner would have accepted the plea offer given the fact that he admitted that he would not testify against his half-brother and the offer was contingent on that testimony. As a result, the petitioner has failed to sustain his burden of establishing that Attorney Crone was ineffective for failing to properly advise the petitioner as to a plea offer, and therefore this claim is also denied.
3
Motion to Suppress
The petitioner also alleges that Attorney Crone was ineffective for failing to effectively present evidence during a motion to suppress hearing. The petitioner has failed to sustain his burden of establishing either deficient performance or prejudice with respect to this claim.
A transcript of the motion to suppress hearing reveals the following facts. The petitioner filed a motion to suppress his statement to the police at his underlying criminal trial, claiming that the statement was the product of coercion and in violation of his constitutional rights. Detective George Tirado, Detective Michael Slavin, and the petitioner testified at the hearing. Both arresting officers testified that the petitioner signed his rights card and a lengthier waiver. They both also testified that, during the statement process, there were no threats to the petitioner and the petitioner received food and water. The judge denied the motion, indicating that the officers' testimony was credible and corroborated by the signed waivers, the petitioner's statement, and the petitioner's own testimony at the hearing. The judge found that the petitioner's written statement was lengthy and detailed, and " obviously the statement of a person interested in self-preservation rather than under duress."
At the habeas trial, Attorney Crone indicated that he filed a motion to suppress the petitioner's statement to the police because the petitioner indicated that he had been slapped in the face by Detective Tirado and his eye was injured during the statement process. He further testified that he presented evidence through the petitioner, including testimony that he complained to the authorities about eye pain, and cross examined the officers. The petitioner testified that his statement was not voluntary and that he received injuries to the head and eye. He further provided the court with health center records in which he reported to the medical staff that he was hit by the police in his right eye and suffered from pain and blurry vision.
Based on the foregoing, the court finds that Attorney Crone's performance as to the motion to suppress was not deficient. The record reveals that he presented evidence and effectively examined the officers in lengthy and detailed cross examinations. The petitioner has not demonstrated that " 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, supra, 275 Conn. 458. Moreover, the petitioner did not demonstrate that he was prejudiced by Attorney Crone's performance. The petitioner has not shown that a reasonable probability exists that that had Attorney Crone presented the medical records, the trial court was likely to grant the motion to suppress. See Johnson v. Commissioner of Correction, supra, 285 Conn. 575 (finding of prejudice requires " a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance"). The underlying court determined that the officers' testimony was credible and the petitioner's testimony was not credible. The court further indicated that the overly detailed and lengthy nature of the petitioner's statement is not indicative of a person under duress. As a result, this claim is denied.
B
Due Process Violation
The petitioner also asserts that the state violated his due process rights pursuant to Brady v. Maryland, supra, 373 U.S. 83, by failing to disclose that Detective Tirado was under investigation for crimes of dishonesty. The petitioner has failed to sustain his burden as to this claim.
Where the habeas petition is based upon a failure to disclose exculpatory material in violation of Brady v. Maryland, supra, 373 U.S. 87, " the defendant bears the burden of demonstrating: '(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material.'" Demers v. State, 209 Conn. 143, 150, 547 A.2d 28 (1988), quoting State v. Milner, 206 Conn. 512, 539-40, 539 A.2d 80 (1988); see Diaz v. Commissioner of Correction, 152 Conn.App. 669, 678, 100 A.3d 856 (2014). " It is well established that impeachment evidence as well as exculpatory evidence falls within Brady 's definition of evidence favorable to an accused . . . State v. McPhail, 213 Conn. 161, 167, 567 A.2d 812 (1989); see also State v. White, 229 Conn. 125, 135, 640 A.2d 572 (1994)." (Internal quotation marks omitted.) State v. Floyd, supra, 253 Conn. 737. The state has the duty to supply to the defense favorable material that is within its possession or control and which the state knew or should have known was exculpatory. Demers v. State, 209 Conn. 143, 150-51, 547 A.2d 28 (1988).
At the habeas trial, Attorney Christopher Mattei testified that he was involved in the investigation on Detective Tirado. He further testified that Detective Tirado was formally indicted on July 25, 2012, and charged with conspiracy to violate federal election laws and making a false statement to the Federal Bureau of Investigation. Attorney Mattei also testified that due to the sensitive and covert nature of the investigation, no information was available prior to his indictment in July. Attorney Mariani, the prosecutor in the petitioner's case, testified at the habeas trial that he was not aware of the investigation into Detective Tirado until his indictment was made public in July 2012. The record also reveals that evidence began in the petitioner's criminal case on May 7, 2012, the verdict was accepted and recorded on May 10, 2012, and the petitioner was sentenced on July 17, 2012.
Pursuant to the foregoing, the court finds that the petitioner failed to prove that evidence of any investigation into Detective Tirado was suppressed. Attorney Mariani testified that he had no knowledge of the investigation into Detective Tirado until he was indicted after the petitioner's trial had ended. His testimony is corroborated by Attorney Mattei's testimony indicating that no information surrounding the investigation would be made public until Detective Tirado was indicted. Detective Tirado was not indicted until after the petitioner was sentenced in his case. The state had no evidence within its possession or control to suppress during the petitioner's trial. Therefore, the petitioner failed to sustain his burden of proving that the prosecution suppressed any evidence regarding the investigation surrounding Detective Tirado. As a result, this claim is denied.
III
CONCLUSION
Accordingly, the petitioner's habeas petition is denied.