Opinion
No. CV 97 0407991S
May 17, 2011
MEMORANDUM OF DECISION ON MOTION TO AMEND PETITION
The issue before the court is whether the petitioner should be permitted to amend his petition under the circumstances of this case. Section 23-32 of the Practice Book states that "the petitioner may amend the petition (for habeas relief) at any time prior to the filing of the return. Following the return, any pleading may be amended with the leave of the judicial authority for good cause shown." Hasan v. Warden, 27 Conn.App. 794 (1992) involved a case where petitioner's counsel sought to amend the petition on the third day of evidence to add a new allegation of ineffective assistance of counsel for failure to examine a search warrant. See also Isaac v. Truck Service Inc., 52 Conn.App. 545, 550-51 (1999) where trial court was held to have committed error in allowing defendant to amend answer to conform to testimony of defendant's agent during trial. The Hasan court referred to and quoted from several civil cases on the standards that should guide a trial court in ruling on a motion to amend. The court said:
"While our courts have been liberal in permitting amendments; Johnson v. Toscano, 144 Conn. 528, 587 . . . (1957); this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. Cummings v. General Motors Corporation, 146 Conn. 443, 449-50, (1959). The motion to amend is addressed to the trial court's discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. Freccia v Martin, 163 Conn. 160, 164, (1972)." Bechman v. Jalich Homes, Inc., 190 Conn. 299, 302-03, . . . (1983) . . . It is within the discretion of the trial court to grant or deny an amendment, and a decision to deny an amendment during a trial will not be disturbed unless there is a clear abuse of that discretion. Lawson v. Godfried, 181 Conn. 214, 216, (1980). Farrell v. St. Vincent's Hospital, 203 Conn. 554, 561-62, 525 A.2d 954 (1987).
"The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise." Papagorgiou v. Anastopoulous, 23 Conn.App. 522, 527, . . . (1990). Even if a material variance arguably exists between the allegations and proof, the court, in its discretion, could permit an amendment to the complaint to allow the proof to conform to those pleadings. Practice Book 178. "Justice is not served [however] by accepting a claim of variance [between allegations and proof] from a party who at all times has been in a position of knowing the true state of facts." Schaller v Roadside Inn, Inc., 154 Conn. 61, 67, . . . (1966).
In upholding the trial court's denial of the request to amend the petition the Hasan court said at page 799:
The petitioner claims that he was unaware that a search warrant existed and had no reason to know that the search warrant application was facially and fatally deficient. He contends that he learned of the warrant and its alleged insufficiency for the first time during the respondent's cross-examination of trial counsel at the habeas proceeding. It is evident to us, however, that not only was the search warrant part of the defense file at the time of the petitioner's trial, it was specifically mentioned in the opinion of the Supreme Court on the petitioner's original appeal. It was also the subject of many questions during the petitioner's direct examinations of both trial counsel and appellate counsel. Neither the petitioner nor his habeas counsel could have been unaware of the issuance of the search and seizure warrant. The petitioner cannot seriously make a claim of surprise. Further, this petition has been in the judicial system for approximately four years and was one of the oldest cases on the habeas docket at the time.
Hasan was in part relied upon for a statement of law on the issue before the court in Pierce v. Commissioner of Correction, 100 Conn.App. 1, 6-7 (2007), where a motion to amend was made before the actual hearing on the petition. In Pierce the petitioner filed a second amended petition on November 24, 2003; that petition was amended November 16, 2004. On December 8, 2004 the respondent commissioner filed a motion to dismiss two counts of the petition which was granted as to one count. On that date the respondent filed a return to which the petitioner responded on December 20, 2004. On March 24, 2005 the petitioner filed a motion to amend his petition which was denied on April 6, 2005, the date the habeas hearing was held. The Pierce court in holding that the trial court did not abuse its discretion in denying the amendment said at page 7: "The petitioner filed his motion to amend his petition thirteen days before the habeas hearing on April 6, 2005. Subsequent to his filing his petition for a writ of habeas corpus (on November 24, 2003, comment by this court), the petitioner had ample time in which he could have sought permission to amend the petition, but instead the petitioner sought permission to amend his petition less than two weeks prior to the habeas hearing. The (trial) court in exercising its sound discretion denied the petitioner's motion." In language the court finds interesting Pierce then said: "The petitioner has failed to demonstrate a clear abuse of discretion in this ruling." (Emphasis by this court.) Does that suggest if the amendment had been allowed appellate review, under the circumstances of this case, would not dictate a finding of abuse of discretion? In this regard the court in Moore v. Sergi, 38 Conn.App. 829, 836 (1995) said "where a sound reason to amend is shown the trial court must allow the amendment. Refusal under such circumstances constitutes an abuse of discretion," citing Cook v. Lawlor, 139 Conn 68, 71-72 (1952); or as said in McNiel v. Riccio, 45 Conn.App. 466, 473-74 (1997): "To reverse a ruling of the trial court allowing amendment to the pleadings requires that the defendant make a clear showing of abuse of discretion." But as was also said in Moore v. Sergi supra: "In the final analysis the court, will allow an amendment, unless it will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing parting or confuse the issues, or if there has been negligence or laches attaching to the offering party."
Moore involved a post-trial amendment to confirm the counterclaim pleadings to the evidence but its statement of general principles is instructive, timeliness of filing in relation to a trial is, however, a vital consideration in determining fairness to the party opposing the amendment or negligence by the party proposing an amendment.
A good test of the propriety of any proposed amendment, whether in the civil or habeas context is set forth in Cook v. Lawlor, supra, where the court said: "In exercising its discretion with reference to a motion for leave to amend, a court should ordinarily be guided by its determination of the question whether the greater injustice will be done to the mover by denying him (her) his (her) day in court on the subject matter of the proposed amendment or to his (her) adversary by granting the motion, with the resultant delay" 132 Conn. at page 72. This observation must be viewed in the context of a comment in DuBose v. Carabetta, 161 Conn. 254, 263 (1971), where a proposed amendment was made during the course of a trial, but is applicable to pre-trial amendments: "In determining whether there has been an abuse of discretion much depends on the circumstances of each case."
The court will try to apply the foregoing legal principles to the issue before the court. A habeas petition was initially filed in this matter in 1997. One of the allegations of the petition in paragraph 5(b) was that "trial counsel was ineffective in failing to raise the issue of petitioner's competency." The motion to amend seeks to add an allegation to this language to the effect that counsel was also ineffective because in addition to competency he failed to raise "any other issues caused by petitioner's psychological disorders, and to have him evaluated by an expert for that purpose." The motion to amend was filed January 18, 2011 and referred to and was preceded by an "Expert Disclosure" filed by the petitioner on January 3, 2011. Therein a Dr. Welsh was disclosed and he was expected to testify that "the petitioner suffers from psychiatric disorders including paranoid schizophrenia, which condition disorders are highly likely to have manifested prior to 1987, and continues into the present; said disorders affected the petitioner's judgment regarding the risk of flight, as opposed to cooperation with the investigation of the incident reported by Nikki Walker on October 24, 1987."
The matter was set down for a hearing on the merits on January 11, 12, 13, 2011 but did not go forward at that time due to weather conditions. Interestingly the petition appeared before this court on January 19, 2011 on the "Hearing Docket" not on the trial docket. The experienced clerk handling habeas matters informed the court that the "Hearing Docket" is reserved for hearings on motions and pretrial matters. This observation is corroborated by the fact that at the January 19, 2011 hearing before this court only the motion to amend was argued and a request for an in chambers examination of a document was referred to by the lawyers; there was no "my witnesses are in the hallway and we're ready to go" argument.
First it should be noted that flight can be powerful evidence when offered against an accused; "flight, when unexplained, tends to prove a consciousness of guilt" State v. Ferrara, 176 Conn. 508, 516 (1979). Dr. Welsh, if he were to testify as indicated would explain away that inference.
Whether defense counsel's failure to procure an examination with regard to the specific condition mentioned by Dr. Welsh is a separate and predicate question to the new ineffective assistance argument — a question not now before the court.
In any event the first question that must be asked is whether there was negligence or laches on counsel's part in failing to be in a position to file and in fact not filing a motion to amend until January 18, 2011. Given the history of this case the court believes the answer must be in the negative. An October 6, 2006 petition filed by an Attorney Koch represented that as of that date the petitioner on this habeas matter had been appointed five successive attorneys each of whom "were compelled to withdraw for various reasons." Attorney Koch, according to uncontested representations in present counsel's January 18, 2011 brief arguing for the amendment, concluded the court could not require the petitioner to agree to a psychological evaluation. Koch could not convince the petitioner to agree to such an evaluation and as a result Attorney Koch was granted permission to withdraw since in his view such an evaluation was necessary to pursue the ineffective assistance argument then operative regarding competency.
Present counsel was appointed to represent the petitioner in 2008. The Petitioner did not agree to such a psychological evaluation until September 2010 and Dr. Welsh did not evaluate the petitioner until December 7, 2010. On December 13, 2010 Dr. Welsh orally reported his finding of paranoid schizophrenia to petitioner's lawyer and counsel informed the court and Assistant State's Attorney Clifton on December 14, 2010 at a chamber's conference with another judge. From the transcript of the January 19th argument on this motion, it appears, petitioner's counsel assumed at this conference the Welsh findings could somehow be included under the umbrella of the competency allegations to argue ineffectiveness in failing to secure an evaluation of paranoid schizophrenia which might have diluted the flight evidence and failure to cooperate in the initial investigation of the crime which could serve as implied admissions. That is clearly wrong; the court could not find Connecticut cases on point but it has been generally held that a trial court can conclude a person is competent to stand trial and still suffer from paranoia, see Indiana v. Edwards, 564 U.S. 164 (2008), see also Rosemond v. Catoe, 680 S.E.2d 5 (S.C., 2009); Commonwealth v. EL, 977 A.2d 1158 (Pa., 2009); Common-wealth v. EL, 977 A.2d 1158 (Pa., 2009).
None of the foregoing rises to that level of negligence which the court considers as a decisive reason to bar this amendment. For months if not years the petitioner refused a mental evaluation; this could very well be a symptom of disease. Even if that argument is not fair to the state's position, the present lawyer for the petitioner did get the necessary consent and contacted the doctor in September 2010 to do the evaluation; it is hardly her fault that the doctor took three months to the exam. He only contacted the lawyer the evening of December 13th by way of a phone conversation, not a written report. The lawyer apparently did not have sufficient time to formulate the full legal implications of Dr. Welsh's opinion relative to the ineffectiveness claim overnight and prior to the December 14th chamber's conference. Counsel upon reflection determined how Welsh's testimony could better be used to advance the new variation of the ineffectiveness claim and did so through the January 3, 2011 expert disclosure.
It should also be noted that this petitioner had filed medical habeas petitions in the 1990s and one of the doctors who evaluated him concluded he was paranoid schizophrenic. Why could present counsel for the petitioner not have amended the petition to reflect the position she now seeks to advance when she first got in the case in 2008? Counsel represents the doctor who opined as to the petitioner's paranoia did not do full testing and he advanced his opinions in the 1990s. A current evaluation was clearly necessary and under the foregoing circumstances a lawyer cannot move to amend the pleadings under our rules of practice, P.B. § 4-2 because she could not base any such motion on a good faith belief that there were grounds to support the amendment.
Taking everything into consideration the court concludes that the fairest and best course would be to allow the amendment. As it made clear in the hearing as this matter the state should have as much time as necessary to conduct discovery and hire its own expert to rebut any claim of Dr. Welsh and it suggests that the respondent file a motion for continuance of the hearing for the six-month period Assistant State's Attorney Clifton believed he would need with a copy to this court.
Judicial economy also suggest this approach. If the amendment is allowed and fully litigated, as the court is sure it will be by these able lawyers, principles of res judicata and collateral estoppel would bar relitigation in a successive petition of the precise issue raised by the amendment see In Re Application for Petition, 272 Conn. 653, 661 et seq. (2005), Smith v. Commissioner, 122 Conn.App. 637, 641 (2010), cf Johnson v. Commissioner, 288 Conn 53, 66-67 (2008), Moody v. Commissioner, 127 Conn.App. 293, 297-98 (2011).
What is the alternative, to deny the petition and have the petitioner assert an ineffectiveness petition against his present counsel because some judge decided it was fatal to counsel's effort to amend the petition in that it took 19 or 20 days to articulate the implications of an oral communication from a psychiatrist on December 13, 2010 which she in fact did on January 3, 2011? To ask the question, at least for the court provides the answer to what should be done here. Or to put it another way, if counsel had articulated the amendment she seeks in the December 14th chambers conference, how could the amendment have been fairly denied given the length of time it took to procure the report through no fault of counsel — if that is so how could the nineteen-day wait to January 3rd be found to so critically have prejudiced the state as to bar the amendment.
In any event the amendment is allowed.