Opinion
TSRCV174008796S
01-15-2020
Mark Bova (Inmate #224797) v. Commissioner of Correction
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Seeley, Hope C., J.
MEMORANDUM OF DECISION
Seeley, J.
The petitioner, MARK BOVA, brings this petition for a writ of habeas corpus, his third habeas corpus proceeding, in which he seeks to have his convictions vacated and the matter be returned to the trial court for further proceedings.
I
UNDERLYING FACTS AND PROCEDURAL HISTORY
The petitioner was a criminal defendant in the matter of State v. Bova, CR93-0096296-S in the judicial district of Ansonia-Milford. The petitioner was convicted after a jury trial of murder in violation of General Statutes § 53a-54a(a) and conspiracy to commit murder in violation of General Statutes § § 53a-54a(a) and 53a-48(a). The trial court (Gormley, J.) sentenced him to sixty years of incarceration on the murder count and twenty years of incarceration on the conspiracy count, to run concurrently. On direct appeal, our Supreme Court concluded that the jury reasonably could have found the following facts.
"On January 29, 1992, at approximately 1:12 a.m., the [petitioner], accompanied by his father, approached Michael Pace, an officer of the Orange police department, in the Stop and Shop Supermarket parking lot in Orange. The [petitioner] told Pace that he wanted to report that his wife, Susan Bova, was missing. According to the [petitioner], his wife had left their Ansonia home to go shopping between 7 and 7:30 p.m. the preceding evening and had not returned. The [petitioner] further stated that he had just discovered his wife’s car, a Chevrolet Cavalier, parked across the street from the Stop and Shop Supermarket in the parking lot of the Bradlees Department Store (Bradlees).
"Pace then followed the [petitioner] to the Cavalier, searched the vehicle and found only a plastic bag of clothing in the trunk. After Pace had completed a missing person report, the [petitioner] drove the Cavalier home.
"Shortly thereafter, the West Haven police department was notified that the body of a woman had been found in a soccer field near the Bradlees parking lot. The [petitioner] was so informed by the police, and he immediately proceeded to the field. Upon his arrival there, he was shown the body, which he identified as his wife. According to the testimony of several police officers, including Officers Usha Carr and Louis Matteo of the West Haven police department, the [petitioner] showed no emotion upon viewing his wife’s body.
"The [petitioner] cooperated with the police investigation of his wife’s death, consenting to a search of his home and to a second search of the Chevrolet Cavalier later in the day on January 29. Although the investigating officers found no evidence causing them to link the [petitioner] to the murder, two West Haven police officers, including Matteo, observed that the [petitioner’s] entire home recently had been thoroughly cleaned and vacuumed. The officers also noticed sawdust on the floor of the garage, most of which had been swept up and deposited into a small metal container located in the garage. Finally, the officers observed several wood chips on the passenger seat of the Cavalier.
"During the investigation, the [petitioner] told the police about an extramarital affair that he had had with Diane Donofrio. According to the defendant, he began the affair with Donofrio in 1985, three years after his marriage to the victim. In addition to evidence of the [petitioner’s] relationship with Donofrio, there was evidence of the generally unstable nature of the [petitioner’s] marriage to the victim. Specifically, the couple had separated on two occasions, and the victim had commenced divorce proceedings against the [petitioner] in the year preceding her death. The victim had withdrawn the marital dissolution action in November 1991, after she and the [petitioner] had reconciled.
"The evidence also revealed that the [petitioner] was suffering from financial difficulties. In 1984, the [petitioner] had left his job as a produce manager at a grocery store and borrowed $180,000 from his parents to start an automotive supply business with his brother. The business failed, however, and the [petitioner] returned to a lower paying position at the grocery store. At the time of the victim’s death, the [petitioner] still owed monthly payments of over $500 to his parents. There was also evidence that the [petitioner], as the primary beneficiary under two life insurance policies issued to the victim totaling $296,900, was in a position to benefit financially from her death.
"Four months after the victim’s death, the West Haven police sought and obtained a search warrant for the [petitioner’s] home. The affidavit in support of the warrant indicated that wood particles and synthetic fibers resembling carpet had been discovered on the clothing worn by the victim at the time her body was discovered. The search warrant authorized the police to search the defendant’s home for such materials. Upon execution of the search warrant, the police seized carpet fibers and wood fragments that matched those found on the victim’s clothing.
"In May 1993, the [petitioner] terminated his relationship with Donofrio and moved in with another woman. Two months later, Donofrio contacted the West Haven police to report that the [petitioner] had killed the victim. Thereafter, Donofrio explained that she and the [petitioner] had discussed his plans to murder the victim at least one week prior to the murder. Specifically, the [petitioner] told Donofrio that he loved her and could not afford a divorce, that he intended to kill the victim by strangulation, and that he would commit the murder on a Tuesday because he did not work on Wednesday.
"Donofrio testified that the [petitioner] telephoned her between 6 and 6:30 p.m. on Tuesday, January 28, 1992, to tell her that he was in the process of killing the victim and that he needed her assistance. When Donofrio arrived at the [petitioner’s] home a few minutes later, she found the [petitioner] and the victim in the couple’s bedroom. The victim was lying on the bed, face down and unconscious. The [petitioner], who was on top of the victim, was strangling her with an extension cord. Because the victim continued to exhibit a pulse, the [petitioner] defendant began to strangle her manually, holding his thumbs on the back of her head and his fingers at the front of her neck. Donofrio then helped the [petitioner] move the victim from the bed onto the floor, where they took turns smothering her with a pillow until she had no pulse.
"Shortly thereafter, the [petitioner] awoke his one year old son and strapped him into an infant seat in the back seat of Donofrio’s car. The [petitioner] gave Donofrio the extension cord, the pillow and the victim’s pocketbook and instructed Donofrio to meet him at the Bradlees parking lot in Orange. Donofrio then left the [petitioner’s] home and drove to the Bradlees parking lot. Approximately twenty minutes later, the [petitioner] arrived at the parking lot, driving the victim’s Cavalier. The [petitioner] explained to Donofrio that he had moved the victim’s body to his garage, placed it in the Cavalier, and then driven to the soccer field, where he had discarded the body. The [petitioner] left the Cavalier in the Bradlees parking lot, and Donofrio gave him and his son a ride home. According to Donofrio, she later placed the pillow in a charity’s used clothing bin, gave the infant seat to a coworker, and placed the other objects in the trash.
"The forensic evidence presented at trial corroborated Donofrio’s testimony. The medical examiner testified that the victim had died from strangulation by a long, thin ligature, such as a lamp cord. In addition to two separate sets of ligature marks on the victim’s neck, bruises on her neck indicated that she also had been strangled manually. An examination of the victim’s voice box revealed a pattern of broken bones consistent with Donofrio’s testimony that the victim had been strangled from behind. The medical examiner further indicated that the assault on the victim had lasted for up to twenty to thirty minutes. In addition, hairs similar to those of the [petitioner] were found on the victim’s jacket, and hairs similar to those of Donofrio were found on the victim’s pants. Finally, because there was no sign of a struggle at the location where the victim’s body was found, it appeared that the victim had been killed somewhere else, and that her body had been transported to the field."
State v. Bova, 240 Conn. 210, 213-19, 690 A.2d 1370 (1997).
At trial and on direct appeal, the petitioner was represented by Attorney John R. Williams. On appeal, the petitioner claimed that the trial court improperly: (1) restricted his cross-examination of several witnesses, including Donofrio, in violation of his right to confront his accusers as guaranteed by the sixth amendment to the United States Constitution; (2) denied his motion to suppress incriminating evidence seized from his home pursuant to a search warrant issued in violation of the fourth amendment to the United States Constitution; (3) precluded him from introducing certain evidence in violation of his right to present a defense as guaranteed by the sixth and fourteenth amendments to the United States Constitution; (4) overruled his objections to certain allegedly inflammatory comments by the state during its closing argument, thereby depriving him of a fair trial; and (5) concluded that the evidence was sufficient to support the verdict of guilty of the crime of conspiracy to commit murder. State v. Bova. supra, 240 Conn. 213. The Supreme Court affirmed the judgment of the trial court.
In rejecting the petitioner’s claim that the trial court restricted his cross examination of Donofrio, the Supreme Court concluded that the petitioner had "elicited numerous admissions by Donofrio that clearly established her intense and abiding hostility toward him." Id., 226. The Court highlighted the following admissions: "On cross-examination, Donofrio admitted that: (1) she had informed the victim of her ongoing affair with the [petitioner] in an effort to cause the victim to divorce the [petitioner] so that Donofrio could be with him; (2) after the victim’s death, she relocated her residence to be near the [petitioner]; (3) when first questioned by the police, she stated that she had no knowledge about the victim’s murder; (4) she told the police about the [petitioner’s] role in the murder only after the [petitioner] had terminated their relationship and began a romantic relationship with Lisa Sheldon; (5) in her initial statements to the police implicating the [petitioner] in the victim’s murder, she had repeatedly and intentionally lied about her own involvement in the killing; and (6) she hated the [petitioner] and wanted to destroy him." Id., 224.
The Court also rejected the petitioner’s claim that the evidence was insufficient to support the jury’s determination that the petitioner and Donofrio conspired to murder the victim. The Court concluded that "the evidence amply supported the jury’s determination that the defendant and Donofrio conspired to murder the victim. Donofrio testified that the defendant had told her of his plans to kill the victim several days before the murder, that he had called her while he was in the process of killing the victim and enlisted her help in completing the deadly undertaking, and that, in response to the telephone call, she had traveled immediately to the defendant’s home and assisted him in fatally suffocating the victim with a pillow. Donofrio’s version of the events was supported by forensic and other circumstantial evidence." Id., 246.
On February 23, 1995, Donofrio pleaded guilty to conspiracy to commit murder and making a false statement to the police before the same trial judge, Gormley, J., who had presided over the petitioner’s trial. Prior to the entry of Donofrio’s guilty pleas. the prosecutor, State’s Attorney Mary M. Galvin, indicated that she was filing a substituted information as a result of a judicial pretrial that had occurred subsequent to the jury’s verdict in the petitioner’s case. State’s Attorney Galvin stated that "prior to the time of this pretrial which occurred after the guilty verdict was entered on Mark Bovo (sic), there had been no representation to defense counsel or to the Court as to what the State would do." Donofrio’s counsel, Timothy P. Dillon, confirmed that "there were never any agreements that were entered into by us and the State regarding any disposition of the case." Judge Gormley also stated that "there were no discussions with reference to a disposition of [Donofrio’s] case prior to the verdict being entered in the case of State versus Mark Bovo (sic)." The court-indicated disposition for Donofrio’s guilty pleas was a maximum sentence of twelve years, execution suspended after the service of six years, followed by probation, with Donofrio’s counsel having the opportunity to argue for a lesser sentence.
Donofrio was sentenced on April 6. 1995 to a total effective sentence of ten years of incarceration, execution suspended after the service of four years, followed by a period of probation for three years. During the sentencing hearing, the trial court stated: "One further thing the Court wants to say and to say very clearly and categorically, and that is that there have been no deals at all in this case. I read in the paper this morning that the Bova family still believes, and will believe until their dying days, that there has been a deal. I can’t change how they feel and they can feel there’s been a deal for as long as they want. I can only tell them that there has been no deal, none that I have participated in."
After the Supreme Court affirmed the judgment of the trial court on direct appeal, the petitioner filed his first habeas petition on March 9, 1999, claiming that his trial counsel, Attorney Williams, was ineffective for failing to object when the jury asked a question regarding the meaning of a nonsurety bond during Donofrio’s testimony. The petitioner argued that this question demonstrated the jury was impermissibly deliberating prematurely, and that Attorney Williams was ineffective in failing to request an evidentiary hearing into premature deliberations. See Bova v. Commissioner of Correction, 95 Conn.App. 129, 131-36, 894 A.2d 1067, cert. denied, 278 Conn. 920, 901 A.2d 43 (2006). The habeas court dismissed the petition, and the Appellate Court affirmed the judgment. Id.
The petitioner filed a second habeas petition on April 27, 2011, which was amended by assigned counsel, Attorney Peter Tsimbidaros, on April 9, 2013. In count one, he alleged ineffective of assistance of trial counsel for a myriad of reasons. In count two, he alleged ineffective assistance of prior habeas counsel for failing to adequately present trial counsel’s alleged ineffective assistance of counsel. In count three, the petitioner alleged certain trial court errors, including that the trial court erred in finding a sufficient basis for a conspiracy in the petitioner’s case while finding in essence there was no sufficient basis for a conspiracy Donofrio’s case. Count four alleged several claims of prosecutorial impropriety during closing argument. See Bova v. Warden, Docket No. CV 11-4004123, 2013 WL 5496457, at *1 (Conn.Super.Ct. September 11, 2013).
The respondent filed a return alleging affirmative defenses, including procedural default and res judicata. The respondent filed a motion for summary judgment as to counts one, three and four. The second habeas court (Kwak, J.) granted the respondent’s motion for summary judgment and dismissed these three counts. As to count one, the court concluded the ineffective assistance of counsel claim against trial counsel constituted a successive petition. The court held that the petitioner was procedurally defaulted from raising the trial court errors as alleged in the third count. As to the fourth count alleging prosecutorial impropriety in closing argument, the court held that this claim had been previously litigated in the direct appeal. Bova v. Warden, supra, 2013 WL 5496457, at *2-5.
The second habeas court heard evidence on the merits of count two, which alleged ineffective assistance of prior habeas counsel for failing to adequately present trial counsel’s alleged ineffective assistance of counsel. The petitioner testified and presented documentary evidence. The court denied the petition and subsequently granted the petitioner’s petition for certification to appeal. Bova v. Commissioner of Correction, 162 Conn.App. 348, 352-53, 131 A.3d 268. cert. denied, 320 Conn. 920, 132 A.3d 1094 (2016).
On appeal, the petitioner claimed that the second habeas court improperly concluded that he had not been denied effective assistance of counsel when his first habeas counsel failed to adequately pursue claims pertaining to the failure of his trial and appellate counsel, (1) to request a new trial based on or to raise on appeal the trial court’s inconsistent application of the dual intent requirement in the law of conspiracy; (2) to investigate and then produce an adequate basis to impeach Donofrio regarding her bias and motive; and (3) to object adequately to instance of prosecutorial impropriety during closing argument. The Appellate Court affirmed the judgment of the second habeas court. Id., 350.
As to the claim that Attorney Williams’ failure to raise the issue of any discrepancy among the trial court’s statements regarding the existence of a conspiracy constituted ineffective assistance of counsel, the Appellate Court concluded the petitioner did not prove that he was prejudiced. Id., 358. The Court reasoned as follows: "Our review of the record demonstrates that the trial court commented on the evidence in a thorough and thoughtful manner prior to ruling; it did not make inconsistent rulings." Id., 358-59. The Court concluded that the criminal trial court denied the petitioner’s motion for judgment of acquittal on the conspiracy charge based on the evidence and argument presented at trial. The Court also found that "the trial court’s leniency in sentencing Donofrio was supported by a host of factors, and the trial court specifically stated that a conspiracy case against Donofrio would not have been impossible for the state to win. Id., 359.
The Appellate Court concluded that the second habeas court properly determined that the petitioner had failed to prove there was a reasonable possibility that had his first habeas counsel raised Attorney Williams’ failure to pursue a claim that Donofrio had been stalking the petitioner, the result of the proceeding would have been different. Id., 361. The Court noted that Attorney Williams had cross examined Donofrio extensively and elicited "specific instances when she had lied to the police and had lied in court at a pretrial hearing regarding her own role in the murder and other details about her relationship with the petitioner. She testified that she had written the petitioner in order to upset the victim and destroy the victim’s marriage to the petitioner. Most importantly, she testified that she hated the petitioner and wanted to destroy him." Id.
The petitioner initiated his third habeas matter by filing a petition for writ of habeas corpus on April 24, 2017. The petitioner, who is self-represented, filed a second amended petition for writ of habeas corpus on September 13, 2018, alleging four counts in support of habeas relief. The petitioner alleges that (1) he was denied a fair trial and due process of law as a result of judicial bias and misconduct; (2) he was denied a fair trial and due process of law as a result of prosecutorial improprieties; (3) he was denied due process of law because he was held to stand trial based on an insufficient showing of probable cause; and (4) he was denied a fair trial and due process of law as a result of the prosecutor’s failure to disclose exculpatory evidence and to correct false and misleading testimony relating to Donofrio.
The respondent’s return denies the petitioner’s claims that he is entitled to habeas corpus relief, and raises several affirmative defenses. The petitioner filed a reply to the return. Prior to trial, the court (Newson, J.) issued an order dismissing count two pursuant to Practice Book § 23-29(3). Judge Newson determined that the claim of prosecutorial impropriety "presents the same grounds as a prior petition ... and fails to state new facts or new evidence not reasonably available to the petitioner at the time of the prior litigation."
The court heard the trial on this matter on March 5, 2019 and April 22, 2019. The petitioner called three witnesses: Attorney John Williams (trial and appellate counsel); Attorney Peter Tsimbidaros (second habeas trial and appellate counsel), and Attorney Timothy Dillon (Donofrio’s trial counsel). The petitioner introduced three exhibits: (1) a CD containing transcripts from the petitioner’s criminal trial proceedings and second habeas trial; (2) the change of plea hearing transcript dated February 23. 1995 in State v. Donofrio, judicial district of Ansonia/Milford at Milford, Docket No. CR-93-0096296S; and (3) the sentencing hearing transcript dated April 6, 1995 in State v. Donofrio. judicial district of Ansonia/Milford at Milford, Docket No. CR-93-0096296S. The respondent did not call any witnesses or introduce any exhibits.
The exhibit contains the following transcripts from the criminal trial before Judge Gormley: November 3, 1994 (motions), November 4, 1994 (motions), November 7, 1994 (evidence begins), November 9, 1994 (two volumes), November 10, 1994 (two volumes), November 14, 1994 (two volumes), November 15, 1994 (two volumes), November 16, 1994 (two volumes), November 17, 1994 (two volumes), November 18, 1994 (two volumes), November 21, 1994 (two volumes), November 22, 1994 (two volumes), November 23, 1994, November 28, 1994 (two volumes), November 29, 1994 (two volumes), November 30, 1994, December 2, 1994 (closing arguments and jury charge) (two volumes), December 5, 1994, December 6, 1994 (verdict), February 21, 1995 (sentencing).
The exhibit contains the following transcripts from the second habeas trial before Judge Kwak: July 24, 2013 and July 25, 2013.
The court notes that the CD submitted as Exhibit 1 also contains the transcripts from Donofrio’s change of plea hearing held on February 23, 1995 and sentencing hearing held on April 6, 1995.
II
DISCUSSION
A
Count One: Due Process Violation Due To Alleged Judicial Bias/Misconduct
The petitioner alleges in count one that the criminal trial judge engaged in judicial bias and misconduct that contributed to the petitioner’s conviction and violated his constitutional rights to a fair trial and due process of law. He first claims that the trial judge engaged in judicial misconduct that prejudiced the petitioner by referring to information not presented as evidence in making its ruling on the petitioner’s motion for judgment of acquitta1. The petitioner also alleges that the trial judge exhibited a pattern of bias against the petitioner and in favor of the petitioner’s co-defendant when the trial judge (1) excluded at the petitioner’s trial the introduction of evidence pertaining to Donofrio’s motive and bias: and (2) applied evidence to an essential element of the crime of conspiracy inconsistently between the petitioner at his trial versus Donofrio at her sentencing hearing.
Paragraph 28b of the petitioner’s second amended petition in the present case alleges the following: "Prior to ruling on the Petitioner’s motion for judgment of acquittal, Judge Gormley made improper comments referring to information not presented in court, as evidence, stating ‘I have both listened to myself being quoted by others on the radio and what I’m supposed to have said in newspaper accounts of [the ruling on the motion for acquittal]’" Paragraph 30 alleges the following: "Judge Gormley’s references to ‘what [he] supposed to have said in newspaper accounts’ and him listen[ing] to [him]self being quoted by others on the radio’ was improper and constitutes misconduct by the Trial Court, and prejudiced the Petitioner."
Paragraph 28a alleges that his trial counsel attempted to elicit testimony regarding his codefendant’s bias and motive, but that the trial judge "excluded any questions pertaining to evidence of bias and motive on behalf of the Petitioner’s co-defendant."
Paragraph 28c alleges that the trial court made the following statements in denying the petitioner’s motion for judgment of acquittal: "At the time the call was made to [the Petitioner’s co-defendant] and, at the time she reached [the Petitioner’s residence, that [the decedent] was still alive. If I conclude that [the decedent] was already deceased or there was- . Then I would have, obviously, difficulty with the conspiracy charge." Paragraph 28c further alleges that during the co-defendant’s subsequent sentencing hearing, the trial court "contradicted [its] own reasoning for denying the Petitioner’s motion for acquittal, stating ‘there is no way I could conclude one way or the other whether or not there was still life in [the decedent] at that time. More than likely there was not.’" The petitioner alleges in Paragraph 29 that the trial court’s actions as articulated in Paragraphs 28a and 28c "demonstrates a pattern of bias against the Petitioner and in favor of the Petitioner’s codefendant."
The return raises the defense of procedural default because the petitioner did not raise this claim either at his trial or on direct appeal. The reply to the return claims that if this claim were procedurally defaulted, then he will establish cause and prejudice by proving (1) the factual or legal basis for the claim was not reasonably available to counsel, (2) there was some interference by officials that made compliance impracticable, and/or (3) one or more of the petitioner’s counsel provided constitutional ineffective assistance of counsel.
In his post-trial briefs, the petitioner argues this claim is not procedurally defaulted because there was "no firmly established and regularly followed procedural requirement for appellate counsel, who in this case was also trial counsel, to investigate or augment the record." The petitioner also limits his cause and prejudice claim to two assertions. First, he argues that his trial and appellate counsel, Attorney Williams, did not have the factual and legal basis for this claim available to him because the codefendant’s sentencing transcript was not available to him, thereby establishing sufficient cause and prejudice to excuse the procedural default. Secondly, the petitioner argues that his second habeas counsel, Attorney Tsimbidaros "attempted to raise several trial court errors," but he "was constitutionally ineffective for failing to present the proper claim."
1
General Principles of Law Procedural Default and the Cause and Prejudice Standard
As noted by our Appellate Court, "[h]abeas, as a collateral form of relief, is generally available to litigate constitutional issues only if a more direct route to justice has been foreclosed through no fault of the petitioner." Gaskin v. Commissioner of Correction, 183 Conn.App. 496, 511, 193 A.3d 625 (2018). "Under the procedural default doctrine, a claimant may not raise, in a collateral proceeding, claims that he could have made at trial or on direct appeal in the original proceeding, unless he can prove that his default by failure to do so should be excused." Saunders v. Commissioner of Correction, 194 Conn.App. 473, 484, A.3d (2019). "The appropriate standard for reviewability of habeas claims that were not properly raised at trial ... or on direct appeal ... because of a procedural default is the cause and prejudice standard." Pierce v. Commissioner of Correction, 158 Conn.App. 288. 305, 118 A.3d 640, cert. denied, 318 Conn. 907, 122 A.3d 636 (2015). Our Supreme Court has recognized that "[t]he cause and prejudice requirement is not jurisdictional in nature, but rather a prudential limitation on the right to raise constitutional claims in collateral proceedings." Hinds v. Commissioner of Correction, 321 Conn. 56, 71, 136 A.3d 596 (2016): see also Gaskin v. Commissioner of Correction; 183 Conn.App. 496, 515, 193 A.3d 625 (2018).
When a respondent "alleges that a claimant should be procedurally defaulted from now making the claim, the claimant bears the burden of demonstrating good cause for having failed to raise the claim directly, and he must show that he suffered actual prejudice as a result of this excusable failure." (Emphasis added.) Kondjona v. Commissioner of Correction, 194 Conn.App. 793, 805 (2019). Thus, both cause and prejudice must be established. See McCarthy v. Commissioner of Correction, 192 Conn.App. 797. 809. 218 A.3d 638 (2019) (If petitioner fails to demonstrate either one, trial court will not review merits of habeas claim).
To establish cause under the procedural default doctrine, it "must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the [s]tate’s procedural rule ... [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel ... or ... some interference by officials ... would constitute cause under this standard ..." Saunders v. Commissioner of Correction, supra, 194 Conn.App. 503.
For a petitioner to demonstrate prejudice, he "must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions ... [T]he petitioner would have to demonstrate that, with the proper instruction, there was a substantial likelihood that the jury would not have found the petitioner guilty of the crime of which he was convicted ... Substantial likelihood or reasonable probability does not require the petitioner to demonstrate that the jury more likely than not would have acquitted him had it properly been instructed ... This is the same showing of prejudice that is required for Strickland or Brady errors ... A reasonable probability is a probability sufficient to undermine confidence in the outcome." Gaskin v. Commissioner of Correction, supra, 183 Conn.App. 515. Our Appellate Court has determined that, "[a] successful ineffective assistance of counsel claim can satisfy the cause and prejudice standard so as to cure a procedurally defaulted claim." Sinchak v. Commissioner of Correction, 173 Conn.App. 352, 366, 163 A.3d 1208 (2017).
Finally, the court notes that the petitioner contends in his post-trial brief that if the court were to determine the petitioner has not established "cause" and "prejudice" to excuse any procedural default, then the court "should still review the [p]etitioner’s claim, on the merits, whereas, failure to do so would result in a fundamental miscarriage of justice." The Appellate Court recently addressed this issue and determined that "mindful of our state habeas review jurisprudence has developed in tandem with federal habeas review jurisprudence, we deem it prudent to follow the United States Supreme Court’s limitation of the ‘fundamental miscarriage of justice’ exception to actual innocence claims." Saunders v. Commissioner of Correction, supra, 194 Conn.App. 496. Because the petitioner is not alleging an actual innocence claim, the court will not review any procedurally defaulted claim that is not excused by the cause and prejudice standard under the "fundamental miscarriage of justice" exception as requested by the petitioner.
2
Was the Due Process Claim Based on Judicial Misconduct or Bias Procedurally Defaulted?
Our Appellate Court recently addressed whether the procedural default rule applies to due process claims raised for the first time by the way of a petition for a writ of habeas corpus. Saunders v. Commissioner of Correction, supra, 194 Conn.App. 488. In Saunders, the petitioner alleged due process violations on the grounds the petitioner was incompetent to stand trial and/or that the state and the trial court failed to comply with General Statutes § 54-56d. Saunders v. Commissioner of Correction, supra, 194 Conn.App. 488. The Court concluded that the due process claims grounded in the petitioner’s alleged incompetence to stand trial and the alleged failures of the state and by trial counsel to comply with Section 54-56d were subject to procedural default. The Court reasoned that "in light of our appellate courts’ consistent and broad application of the cause and prejudice standard to all trial level and appellate level procedural defaults ... with the exceptions of actual innocence claims and Salamon claims, ... we are persuaded that procedural and substantive competency claims are properly subject to the procedural default rule." Id., 496. The Court further noted that. "[t]his is particularly so in light of our Supreme Court’s recent decision in Newland v. Commissioner of Correction. supra, 331 Conn. at 548, 206 A.3d 176, in which the court applied the cause and prejudice standard to a procedurally defaulted claim of a complete deprivation of counsel during the petitioner’s criminal proceedings." Id., 496-97. Based on the reasoning in Saunders, this court finds the procedural default rule is applicable to a due process claim based on an allegation of judicial bias and/or misconduct.
In the present case, the court finds that the petitioner’s due process claim based on judicial misconduct as alleged in Paragraph 28b of the petitioner’s second amended petition (i.e., Judge Gormley’s references during his ruling on the motion for acquittal to "what [he] supposed to have said in newspaper accounts" and him "listen[ing] to [him]self being quoted by others on the radio") is procedurally defaulted. "Claims alleging judicial bias should be raised at trial by a motion for disqualification or the claim will be deemed to be waived ... A party’s failure to raise a claim of disqualification at trial has been characterized as the functional equivalent of consenting to the judge’s presence at trial ... Our Supreme Court has criticized the practice whereby an attorney, cognizant of circumstances giving rise to an objection before or during trial, waits until after an unfavorable judgment to raise the issue. We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial." (Citation omitted; internal quotation marks omitted.) Burns v. Quinnipiac University, 120 Conn.App. 311, 316, 991 A.2d 666, cert. denied, 297 Conn. 906, 995 A.2d 634 (2010).
The petitioner did not raise a claim of judicial misconduct based on the criminal trial court’s statements made in connection with its ruling denying the motion for judgment of acquittal at any point during the trial. Thus, the petitioner’s assertion of judicial misconduct as alleged in paragraphs 28b and 30 based on the trial judge’s statements during trial is procedurally defaulted since it was not raised during the trial proceedings. Furthermore, the petitioner has not proven cause or prejudice so as to excuse the procedural default. The petitioner has not presented any credible evidence or made any meaningful legal or factual argument regarding "cause" or "prejudice" as to this particular allegation of judicial misconduct. The petitioner’s claim of judicial misconduct as alleged in paragraphs 28b and 30 is dismissed.
The petitioner’s claim that the trial judge exhibited a pattern of judicial bias against the petitioner and in favor of Donofrio based on allegations that (1) the trial court excluded any questions pertaining to the co-defendant’s bias or motive at his trial, and (2) the trial court applied the evidence of conspiracy inconsistently to him versus how it was applied to Donofrio at her sentencing is more complicated. The claim of judicial bias based on trial court rulings pertaining to the cross examination of Donofrio, on its own, is procedurally defaulted since it should have been raised at trial, see Burns v. Quinnipiac University, supra, 120 Conn.App. 316, and the petitioner has not established "cause" and "prejudice" to excuse the default.
The petitioner’s trial counsel was not able to raise a claim of judicial bias at the petitioner’s trial based on the trial court’s alleged inconsistent application of the facts of conspiracy to the petitioner at his trial and Donofrio during her sentencing proceeding since Donofrio’s sentencing hearing occurred several months after the conclusion of the petitioner’s trial. Accordingly, the court finds that the claim that the trial court’s alleged actions as described in paragraph 28a, and in paragraph 29 (alleging a pattern of judicial bias based on the allegations in paragraph 28a and c) against the petitioner and in favor of Donofrio in the petitioner’s second amended petition are not procedurally defaulted.
3
Claim of Judicial Bias: the Merits
The court has reviewed the record in this case and the petitioner has not established that the criminal trial court engaged in conduct that showed a judicial bias against the petitioner or established a pattern of judicial bias against the petitioner. Simply put, the trial court’s actions did not rise to the level of judicial bias such that they prejudiced the petitioner and denied him a fair trial.
"[A] charge of bias [or prejudice] must be deemed at or near the very top in seriousness, for bias kills the very soul of judging- fairness ... [A] charge of ... bias [or prejudice] against a trial judge in the execution of his or her duties is a most grave accusation. It strikes at the very heart of the judiciary as a neutral and fair arbiter of disputes for our citizenry. Such an attack travels far beyond merely advocating that a trial judge ruled incorrectly as a matter of law or as to a finding of fact, as is the procedure in appellate practice. A judge’s personal integrity and ability to serve are thrown into question, placing a strain on the court that cannot easily be erased. Attorneys should be free to challenge, in appropriate legal proceedings, a court’s perceived partiality without the court misconstruing such a challenge as an assault on the integrity of the court. Such challenges should, however, be made only when substantiated by the trial record." (Citation omitted; internal quotation marks omitted.) McKenna v. Delente, 123 Conn.App. 137, 144-45, 1 A.3d 260 (2010). To establish a claim of judicial bias, petitioner must prove the judge engaged in conduct "that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned ..." Slate v. Bagnaschi, 180 Conn.App. 835, 865, 184 A.3d 1234, cert. denied, 329 Conn. 912, 186 A.3d 1170 (2018).
"It is an elementary rule of law that the fact that a trial court rules adversely to a litigant, even if some of those rulings were to be determined on appeal to have been erroneous, does not demonstrate personal bias." (Citations omitted; internal quotation marks omitted.) Emerick v. Emerick, 170 Conn.App. 368, 376-77, 154 A.3d 1069, cert. denied, 327 Conn. 922, 171 A.3d 60 (2017). Furthermore, "[o]bviously, if a ruling against a party could be used as ... indicia of bias, at least half of the time, every court would be guilty of being biased against one of the two parties ... The fact that the plaintiff strongly disagrees with the substance of the court’s rulings does not make those rulings evidence of bias." Emerick v. Emerick, supra, 170 Conn.App. 377.
In this case, the petitioner’s allegations of judicial bias are not substantiated by the record. First, the petitioner’s assertion that when trial counsel attempted to elicit testimony regarding Donofrio’s motive and to demonstrate bias, Judge Gormley "excluded any questions pertaining to evidence of bias or motive" on behalf of Donofrio is not accurate. The court reviewed Donofrio’s testimony from the petitioner’s criminal trial. During the cross examination of Donofrio, trial counsel thoroughly and exhaustively cross examined Donofrio and elicited admissions "that clearly established her intense and abiding hostility" toward the petitioner, see State v. Bova, supra, 240 Conn. 224, without interference by Judge Gormley.
Donofrio testified over the course of three days, November 10, 14 and 15, 1994. Trial counsel cross examined Donofrio on November 14 and 15, 1994.
The petitioner’s trial brief dated February 20, 2019 submitted in the present habeas matter provides ample support that Judge Gormley did not restrict the petitioner’s trial counsel from establishing Donofrio’s bias against him and her motive to lie. The petitioner wrote: "Donofrio testified that the Petitioner expressed that he no longer wanted to see her, that the Petitioner moved to Naugatuck in order to get away from her, and an obsessed Donofrio admitted that she moved to Naugatuck in order to follow him because she wanted to be as close to him as she could ... To that end, she testified that she joined the Powerhouse Gym and went to the gym regularly because she felt that would be a way to see the Petitioner ... The breaking point occurred when the Petitioner told Donofrio in May of 1993 that he was in love with someone else." See Petitioner’s Trial Brief, at 10-11. The petitioner provided citations to the trial transcript, which were to Donofrio’s cross examination. The petitioner then quoted a portion of Donofrio’s cross examination where she admitted that it was in the summer of 1993 that she decided she would like to destroy the petitioner.
This court agrees with our Supreme Court’s assessment of the record that on cross examination, "Donofrio admitted that: (1) she had informed the victim of her ongoing affair with the [petitioner] in an effort to cause the victim to divorce the [petitioner] so that Donofrio could be with him; (2) after the victim’s death, she relocated her residence to be near the [petitioner]; (3) when first questioned by the police, she stated that she had no knowledge about the victim’s murder; (4) she told the police about the [petitioner’s] role in the murder only after the [petitioner] had terminated their relationship and began a romantic relationship with Lisa Sheldon; (5) in her initial statements to the police implicating the [petitioner] in the victim’s murder, she had repeatedly and intentionally lied about her own involvement in the killing; and (6) she hated the [petitioner] and wanted to destroy him. Id., 224; see also, Bova v. Commissioner of Correction, supra. 162 Conn.App. 348, 361 (trial counsel elicited specific instances when Donofrio had lied to the police and had lied in court at a pretrial hearing; she also testified that she hated the petitioner and wanted to destroy him).
The record also shows that Judge Gormley overruled several objections made by the prosecutor during Donofrio’s cross examination and permitted trial counsel to make legal arguments outside the presence of the jury without interference. While Judge Gormley did not allow the petitioner’s trial counsel to pursue a line of questioning that Donofrio had been stalking the petitioner and his new girlfriend, this ruling does not give rise to a claim of judicial bias. See Emerick v. Emerick, supra, 170 Conn.App. 368.
The petitioner’s second claim of judicial bias also is without merit. He asserts that Judge Gormley showed bias against the petitioner by allegedly making contradictory statements about the evidence. He claims that Judge Gormley initially stated during argument on the petitioner’s motion for acquittal that he would have difficulty with the conspiracy charge if he were to conclude that the decedent was deceased at the time Donofrio reached the petitioner’s home, but then concluded that based on the medical examiner’s testimony, the decedent was more likely to have been alive at the time Donofrio arrived at the petitioner’s house. The petitioner claims that during Donofrio’s sentencing hearing, Judge Gormley contradicted himself by stating "there is no way I could conclude one way or the other whether or not there was still life in [the decedent] at that time. More than likely there was not." The petitioner posits that the only explanation for the inconsistency is that Judge Gormley was unduly influenced by the intense media pressure during the petitioner’s trial, and that Judge Gormley denied the petitioner’s judgment of acquittal due to the media attention.
In the petitioner’s second habeas proceeding, he made a claim that his first habeas counsel failed to pursue claims pertaining to the failure of Attorney Williams either to request a new trial or to appeal on the basis of the trial court’s inconsistent application of the dual intent requirement in the law of conspiracy. While pursued as an ineffective assistance of counsel claim in the second habeas proceeding, this court agrees with our Appellate Court’s determination that "[t]he evidence and argument presented on November 29, 1994, rather than intense media speculation, provided the basis for the trial court’s decision to deny the motion for judgment of acquittal." Bova v. Commissioner of Correction, supra, 162 Conn.App. 359.
The petitioner moved for judgment of acquittal on November 28, 1994 after the state rested. The court heard argument and indicated it was troubled by the lack of evidence of an agreement between the petitioner and Donofrio. The next day, November 29, 1994. the state filed a brief and presented the court with various sections of the transcript of Donofrio’s testimony. The prosecutor provided a lengthy argument reciting the evidence in support of an agreement. The court then reviewed the transcripts during a recess and subsequently ruled that based on its review of Donofrio’s trial testimony and other evidence there was sufficient evidence presented for the case to go to the jury.
The Court further determined that the rulings made by the trial court were not inconsistent. The Court stated that, "[o]ur review of the record demonstrates that the trial court commented on the evidence in a thorough and thoughtful manner prior to ruling; it did not make inconsistent rulings ... The trial court’s leniency in sentencing Donofrio was supported by a host of factors, and the trial court specifically stated that a conspiracy case against Donofrio would not have been impossible for the state to win." Id., 359-60.
In the present habeas petition, the petitioner’s claim is based on a due process violation as a result of judicial bias. The petitioner has not presented any credible evidence that Judge Gormley exhibited bias towards him as a result of Judge Gormley’s statements. There is no credible evidence that Judge Gormley based his ruling to deny the petitioner’s motion for judgment of acquittal due to public pressure. Rather, based upon the record presented, this court agrees with the Appellate Court that Judge Gormley thoughtfully considered the evidence and arguments of counsel, reviewed the transcripts and then issued a ruling based on the evidence and the law. The fact that the petitioner strongly disagrees with the court’s rulings does not make those rulings evidence of bias. See Emerick v. Emerick, supra, 170 Conn.App. 377.
After examining the record, facts and the law, this court concludes that a reasonable person would not conclude that Judge Gormley’s impartiality might reasonably be questioned. In sum, there is no merit to the petitioner’s claim that he exhibited bias against the petitioner or that he engaged in a pattern of bias and partiality against the petitioner. The petitioner failed to offer any credible evidence to meet his burden of proving judicial misconduct or judicial bias, and therefore. the petitioner’s claim that his constitutional rights to a fair trial and due process were violated based on judicial bias is denied.
B
Count Three: Due Process Violation Due to Standing Trial Based on Insufficient Probable Cause
The petitioner alleges in count three that he was required to stand trial based on an insufficient finding of probable cause. Specifically, he claims that the only evidence presented at the probable cause hearing held on September 30, 1993 that the trial court found formed the basis of its determination that there was a sufficient showing of probable cause was the testimony of Donofrio. At the petitioner’s trial, Donofrio admitted that she lied during her testimony at the probable cause hearing. The petitioner claims that because the court’s finding that there was a sufficient showing of probable cause was based on testimony later admitted to be false, he "was held to answer for a crime punishable to life in prison, in which he was ultimately convicted of and sentenced to, based upon false testimony in violation of the petitioner’s constitutional rights."
The return raises the defense of procedural default because the petitioner did not raise this claim either at his trial or on direct appeal. In his post-trial briefs, the petitioner concedes that this claim is procedurally defaulted, but claims that Attorney Williams "was constitutionally ineffective for failing to raise the issue at trial and/or direct appeal." He then concludes, without any further analysis, "[w]herefore the Petitioner has established ‘cause’ sufficient to excuse the default and ‘prejudice’ resulting therefrom."
The petitioner bears the burden of demonstrating good cause for having failed to raise the claim directly, and he must show that he suffered actual prejudice as a result of this excusable failure, Kondjouct v. Commissioner of Correction, supra, 194 Conn.App. 805. The court finds that the petitioner has not produced any credible evidence in support of his claim that Attorney Williams’ failure to raise this claim constituted ineffective assistance of counsel. nor has he otherwise established "cause" and "prejudice." Accordingly, count three is dismissed.
C
Count Four: Due Process Violation Due to Failure to Disclose Exculpatory Information and Failure to Correct False or Misleading Testimony
The petitioner alleges in count four that he was deprived of a fair trial and due process because (1) the state failed to disclose exculpatory information regarding an informal understanding between the state and Donofrio regarding favorable consideration in exchange for her cooperation in testifying at the petitioner’s trial; and (2) the state failed to correct Donofrio’s allegedly false and misleading testimony that she had not been offered nor was she expecting any consideration in exchange for her testimony.
The return raises the defense of procedural default because the petitioner did not raise this claim either at his trial or on direct appeal. The reply to the return claims that if this claim were procedurally defaulted, then he will establish cause and prejudice by proving (1) the factual or legal basis for the claim was not reasonably available to counsel, (2) there was some interference by officials that made compliance impracticable, and/or (3) one or more of the petitioner’s counsel provided constitutional ineffective assistance of counsel.
In his briefs, the petitioner argues this claim is not procedurally defaulted because there was "no regularly followed procedural requirement for counsel to investigate or augment the record." The petitioner further argues that if this court were to find this claim is procedurally defaulted. he has established cause for the procedural default and prejudice sufficient to excuse the default and permit review for the first time in this third habeas proceeding.
This court concludes that the petitioner did not procedurally default on this claim by failing to raise it either at his trial or on direct appeal as alleged in the respondent’s return. Much of the information that forms the factual basis of this claim only became available after the conclusion of the petitioner’s criminal trial. Donofrio’s change of plea hearing, during which the state filed a substituted information charging conspiracy to commit murder and making a false statement to the police, and her sentencing, in which she received a total effective sentence of ten years of incarceration, execution suspended after the service of four years, followed by a period of probation for three years, occurred several months after the jury verdict in the petitioner’s criminal trial. The court finds that the petitioner did not procedurally default his claim because his more direct route to justice was foreclosed through no fault of his own. See generally Gaskin v. Commissioner of Correction, supra, 183 Conn.App. 511-12.
The court notes the return did not allege procedural default based on the failure of prior habeas counsel to raise the issue. See Gaskin v. Commissioner of Correction, supra, 183 Conn.App. 518 (where respondent’s return only asserted procedural default of due process claim on the basis of failing to raise claim on direct appeal, habeas court improperly suggested petitioner could have raised it in a petition for new trial).
Donofrio originally had been charged with accessory to commit murder and conspiracy to commit murder.
The jury returned its verdict in the petitioner’s criminal trial on December 6, 1994. Donofrio’s change of plea hearing occurred on February 23, 1995 and she was sentenced on April 6, 1995.
The court now will address the merits of the petitioner’s claims in count four. In Section I of this memorandum of decision, the court recites the facts that our Supreme Court determined that the criminal trial jury reasonably could have found. The court finds the following additional facts based upon the credible evidence presented at the habeas trial held on March 5, 2019 and April 22, 2019. Donofrio originally was charged with accessory to murder and conspiracy to commit murder after she admitted her involvement to the police. She was released by the police on a nonsurety bond in the amount of $100,000.
State’s Attorney Galvin made it clear to Attorney Williams that there had been no promises of leniency for Donofrio’s testimony. Donofrio testified at the petitioner’s criminal trial that she has never been given any promises or assurances concerning sentencing in exchange for her testimony and that there was no deal between her and the prosecution. She testified at trial over the course of three days, during which her credibility was severely damaged due to admissions that she lied to the police during numerous interviews and during her testimony at the petitioner’s probable cause hearing, she engaged in conduct showing she was obsessed with the petitioner before and after the decedent’s death, and she only came forward to the police after she learned the petitioner was involved in a romantic relationship with another woman. She was cross examined regarding the fact that she was released on a nonsurety bond which she explained to the jury meant that she did not have to post any money in order to be released.
On February 23, 1995, approximately nine weeks after the jury returned its verdict against the petitioner, Donofrio appeared in court before Judge Gormley, the same judge who had presided over the petitioner’s trial. The same prosecutor, State’s Attorney Mary M. Galvin, filed a substituted information and replaced the charges of accessory to murder and conspiracy to commit murder with conspiracy to commit murder and making a false statement. State’s Attorney Galvin made the following statements during Donofrio’s change of plea hearing: "The State indicated to the Court in pretrial the extent in nature of Ms. Donofrio’s cooperation of which the Court was not aware. Of course, the court personally was aware of much of the nature and extent of her cooperation having been the trial judge when she actually testified ...
"And I would just like to further state for the record that prior to the time of this pretrial which occurred after the guilty verdict was entered on Mark Bovo (sic), there had been no representation to defense counsel or to the Court as to what the State would do. In fact, the State had not made any decision as to what to do until the time of the pretrial with Your Honor which occurred after the guilty verdict.
"The State, as a result of these pleas, indicated to Attorney Dillon that we are going to leave sentencing entirely in Your Honor’s hands and not make any recommendation one way or another. Your Honor knows all the facts in this case as well as anyone. The State is prepared to leave sentencing entirely to Your Honor."
Donofrio’s counsel, Timothy P. Dillon, confirmed that "there were never any agreements that were entered into by us and the State regarding any disposition of the case." Judge Gormley, during his canvass of Donofrio concerning her election to plead guilty stated the following: "[T]he record should reflect and has already reflected by virtue of the comments of both Attorney Galvin and your attorney, that there were no discussions with reference to a disposition of your case prior to the verdict being entered in the case of State versus Mark Bovo [sic]. Sometime after that, I had discussions with Attorney Galvin and your attorney as to your situation, what your position was as far as a trial or a plea. And at that time, Attorney Galvin did not feel it would be appropriate that she make any recommendations. She did not make any recommendations during that pretrial, and she made none here today. But I did indicate to your lawyer based on the facts as I understand them, your participation in the act itself, also your participation and cooperation in the prosecution of Mark Bovo [sic] that I indicated to your lawyer what I believe would be an indicator or fair sentence in the case. I also told your lawyer that I would allow him to argue for less at the time of sentencing. So the indicated sentence that I gave that day, which I am sure he has discussed with you, was that I would recommend on the conspiracy charge that you serve a sentence of twelve years, suspended after the service of six years and thereafter placed on probation for a period of time ..."
On April 6, 1995, Donofrio appeared for sentencing before Judge Gormley. State’s Attorney Galvin informed the court that, "in addition to the cooperation that Ms. Donofrio gave in court, she was present when the police or representatives of my office asked her to be present each and every time ..." Her counsel, Attorney Dillon, argued for a lesser sentence, recounting her background and lack of criminal record. He also represented to the court that Donofrio "never backed off from testifying despite the fact she was aware that no agreement was discussed or negotiated with the State on her behalf. She was a key witness, the key witness, in the State’s case against Mark Bova and, as such, she came forward and testified."
Judge Gormley made extensive remarks, including, "A plea of Guilty does have a positive effect. This defendant not only has cooperated in the prosecution of Mark Bova, testified against both his interest and her own, but she has also chosen not to force the State to prove a Conspiracy case, which would at least have been, in the Court’s mind, difficult, not impossible but difficult. It was not anything that was just going to simply happen but she has accepted her participation in this matter, has entered her plea of Not Guilty (sic), all of which should go to her benefit."
Judge Gormley further stated: "One further thing the Court wants to say and to say very clearly and categorically, and that is that there have been no deals at all in this case. I read in the paper this morning that the Bova family still believes, and will believe until their dying days, that there has been a deal. I can’t change how they feel and they can feel there’s been a deal for as long as they want. I can only tell them that there has been no deal, none that I have participated in. There were no deals even discussed with me before the trial of Mark Bova concluded ... The original number of twelve after six, which the Court suggested as a cap in this case, was clearly my number based on, number one, her participation and cooperation in the prosecution of Mark Bova ... I will stand by the decision that I make today because it is my evaluation of the case, her participation in the case, her, and her cooperation with the prosecution of Mark Bova ...
"The fact that Ms. Donofrio expects to get some consideration for her participation in this case is only obvious and would be something she ought to expect ... The criminal justice system, whether the State system or the federal system, has always had to rely on the cooperation of other people who were participants in crime to bring people to justice ...
"So the only thing that allowed this matter to be brought to justice and have the person who was the actual perpetrator be convicted and be punished for killing his wife was this particular defendant. Is she entitled to some consideration for that participation? In this Court’s mind, she is and that is the basis that I made the original recommendation in this case.
"She has the right to expect cooperation. She has a right to expect the Court to factor into her sentence the fact that she is the one that allowed the prosecution of Mark Bova to have been successfully completed. At any point in this process, she could simply have pulled back and said I’ve changed my mind. I’m not going to cooperate, I’m going to exercise my Fifth Amendment rights ..." Judge Gormley imposed a total effective sentence of ten years of incarceration, execution suspended after the service of four years, followed by a period of probation for three years.
The petitioner’s argument is that at the very least, there was an understanding between the State and Donofrio that she would receive consideration in return for her testimony against the Petitioner." The petitioner argues that this undisclosed agreement violates Brady, as did the state’s failure to correct Donofrio’s testimony that no such agreement existed.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
In Marquez v. Commissioner of Correction, 330 Conn. 575, 198 A.3d 562 (2019), our Supreme Court recently discussed the principles that govern a claim that the state failed to disclose an agreement with a cooperating witness in exchange for the witness’ testimony. Id., 591. The Court stated: "The fourteenth amendment to the United States Constitution demands that ‘[n]o State shall ... deprive any person of life, liberty, or property, without due process of law ...’" U.S. Const., amend. XIV, § 1. Due process principles require the prosecution to disclose to the defense evidence that is favorable to the defendant and material to his guilt or punishment. Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. 1194; see also State v. Ortiz, 280 Conn. 686, 717, 911 A.2d 1055 (2006). In order to obtain a new trial for improper suppression of evidence, the petitioner must establish three essential components: (1) that the evidence was favorable to the accused; (2) that the evidence was suppressed by the state- either inadvertently or wilfully; and (3) that the evidence was material to the case, i.e., that the accused was prejudiced by the lack of disclosure." Id. 591-92.
In addressing the Brady prongs, it is clear that "[t]he state’s failure to disclose an agreement with a cooperating witness may be deemed to be the withholding of exculpatory evidence" and that impeachment evidence "falls within Brady ’s definition of evidence favorable to an accused." Id., 592. Impeachment evidence, in this context, includes evidence that could potentially alter the jury’s assessment of a witness’ credibility. State v. Jordan, 314 Conn. 354, 370, 102 A.3d 1 (2014). In Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the United States Supreme Court "has recognized that [t]he jury’s estimate of the truthfulness and reliability of a ... witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend." Turner v. Commissioner of Correction, 181 Conn.App. 743, 753, 187 A.3d 1163 (2018). Thus, a plea agreement between the state and a key witness is impeachment evidence falling within the ambit of Brady. Marquez v. Commissioner of Correction, supra, 330 Conn. 592.
Likewise, "[d]ue process is ... offended if the state, although not soliciting false evidence, allows it to go uncorrected when it appears" and that is true "[e]ven if the denial of a leniency agreement is not outright false, but only substantially mischaracterizes the nature of the agreement." (Internal quotations marks omitted). Id., 592-93. Under those circumstances, "the state is obliged to correct the misconception." (Internal citations omitted.) Id., 593; see also Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
In order to prevail on this claim, the petitioner must make a threshold showing of the existence of an undisclosed formal or informal agreement or understanding between Donofrio and the state in which Donofrio would receive a favorable disposition of her case in exchange for her cooperation in the petitioner’s case. See, e.g., State v. Ouellette, 295 Conn. 173, 186, A.2d 1048 (2010); State v. Floyd, 253 Conn. 700, 737, 756 A.2d 799 (2000) ("[w]e first consider whether there was an undisclosed, implied plea agreement between [the witness] and the state"); State v. Satchwell, 244 Conn. 547, 560, 710 A.2d 1348 (1998) (holding that the defendant failed to "establish the necessary factual predicate to his claim," namely, that the prosecutor had entered into a leniency agreement with the witness). The burden of proving the existence of this agreement rests with the petitioner. Brown v. Commissioner of Correction, 179 Conn.App. 358, 367, 179 A.3d 794, cert. denied, 328 Conn. 919, 181 A.3d 91 (2018).
The court finds that based upon the entire record in the habeas trial, the petitioner has failed to prove the existence of either an undisclosed formal agreement or an informal agreement or understanding between Donofrio and the state in which Donofrio would receive a favorable disposition of her case in exchange for her cooperation in the petitioner’s case. There is no doubt that Donofrio did, in fact, receive a favorable disposition of her case. After she testified, one of the original charges, murder as an accessory, was not pursued, while the second charge, conspiracy to commit murder was pursued, along with the charge of providing a false statement. Additionally, even though Donofrio admitted she lied under oath at the probable cause hearing, the state never charged her with perjury. The state did not recommend a sentence, but it did file a substituted information knowing that the court-indicated sentence would be no more than twelve years of incarceration, execution suspended after the service of six years of incarceration with probation.
Nevertheless, the court cannot find sufficient credible evidence to conclude that there was an informal understanding between the state and Donofrio prior to the conclusion of the petitioner’s criminal trial that the state was going to take any action that would favor Donofrio following her testimony at the petitioner’s trial. The prosecutor informed Attorney Williams that there had been no promises of leniency for Donofrio’s testimony, Donofrio’s attorney confirmed that there had been no promises of leniency, and Donofrio testified at the petitioner’s criminal trial that she has never been given any promises or assurances concerning sentencing in exchange for her testimony and that there was no deal between her and the prosecution.
The prosecutor did bring Donofrio’s cooperation to the attention of trial court after the petitioner’s trial. The court, however, does not find that because the prosecutor did bring Donofrio’s cooperation to the court attention, the petitioner has established there was an agreement or understanding between the state and Donofrio that the prosecutor would do so in exchange for her cooperation and testimony. The prosecutor, who at the time was the State’s Attorney for the judicial district of Ansonia/Milford, stated on the record that "there had been no representation to [Donofrio’s] defense counsel or to the Court as to what the State would do. In fact, the State had not made any decision as to what to do until the time of the [Donofrio] pretrial which occurred after the guilty verdict [of the petitioner]." Similarly, Donofrio’s counsel represented to the court that Donofrio testified even though she was aware that no agreement was discussed or negotiated with the State on her behalf. There has been no evidence presented to discredit either the prosecutor’s or Donofrio’s representations to the trial court.
Finally, Judge Gormley’s statement during his sentencing remarks that Donofrio "expects to get some consideration for her participation in this case is obvious" does not establish an understanding of leniency between the state and Donofrio. Judge Gormley also stated, "Is she entitled to some consideration for that participation? In this Court’s mind, she is and that is the basis that I made the original recommendation in this case." (Emphasis added.) Thus, a review of Judge Gormley’s entire remarks makes it clear that this statement and other similar statements were his personal opinions.
Accordingly, the court concludes that the petitioner has failed to prove that the prosecutor had entered into a leniency agreement or understanding, either formal or informal, with Donofrio. Absent such an agreement, the petitioner’s Brady claim as well as his related claim that the state failed to correct false testimony related thereto, necessarily fails. See Brown v. Commissioner of Correction, supra, 179 Conn.App. 373.
III
CONCLUSION
For the foregoing reasons, the court dismisses the claim of a due process violation based on judicial misconduct as alleged in paragraph 28b and 30 of count one in the petitioner’s second amended petition; dismisses the claim of a due process violation based on judicial bias as alleged in paragraph 28a of count one in the petitioner’s second amended petition; denies the claim of a due process violation based on a pattern of judicial bias as alleged in paragraphs 28a, 28c and 30 of count one in the petitioner’s second amended petition; dismisses count three in the petitioner’s second amended petition; and denies count four in the petitioner’s second amended petition. Judgment shall enter accordingly.