Opinion
CV164008384
01-22-2019
Tricia Lynne COCCOMO v. COMMISSIONER OF CORRECTION
UNPUBLISHED OPINION
Hon. John M. Newson, Judge
I. Procedural History
The petitioner was the defendant in a matter pending in the Judicial District of Stamford under docket number CR05-0153435, wherein she was charged with numerous offenses, including vehicular manslaughter, second degree, in violation of General Statutes § 53a-56(a), and operating under the influence, in violation of General Statutes § 14-227a, following a car accident that resulted in the death of all three occupants of the other vehicle. The petitioner retained the legal services of Attorney Michael Sherman, who represented her through trial and all other proceedings relevant to the claims raised in this petition. The basic facts that could reasonably have been found by the jury are as follows:
On the evening of July 26, 2005, the defendant attended a dinner party hosted by Louise Orgera at her home on Dannell Drive in the city of Stamford. Orgera had prepared two pitchers of sangria, each containing a "double bottle" of wine, to which the party guests helped themselves. Between the time that the defendant arrived at the party shortly after 7 p.m. and the time that she left at approximately 9 p.m., she consumed approximately one and three quarters cups of sangria.
After leaving the party, the defendant was driving northbound on Long Ridge Road at approximately 9:30 p.m. when her vehicle crossed the center line and collided with a southbound vehicle occupied by James Inverno, Barbara Inverno and Glenn Shelley. The estimated combined speed of the impact was ninety miles per hour, and both vehicles sustained severe damage. All three occupants in the other vehicle died as a result of the injuries that they incurred in the collision. The defendant suffered broken bones in her left foot and lacerations, and was transported to Stamford Hospital (hospital), where a blood test revealed that she had a blood alcohol content of 241 milligrams per deciliter or 0.241 percent. It was estimated that the defendant’s blood alcohol content at the time of the collision was approximately 250 milligrams per deciliter or 0.25 percent.State v. Coccomo, 302 Conn. 664, 666-67, 31 A.3d 1012 (2011). The jury returned guilty verdicts on three counts each of manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b(a) and misconduct with a motor vehicle in violation of General Statutes § 53a-57(a), and one count of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227(a)(2). Id., 667. On April 27, 2007, the petitioner was sentenced to a total effective sentence of twenty years, suspended after twelve years, followed by five years of probation, as well as a $ 1, 000 fine. The petitioner’s convictions were initially reversed on direct appeal; State v. Coccomo, 115 Conn.App. 384, 972 A.2d 757 (2009); but were subsequently affirmed following review by the Supreme Court. State v. Coccomo, supra, 302 Conn. 664.
The petitioner commenced the present action by filing a petition for writ of habeas corpus on September 26, 2016. The petition alleges that Attorney Sherman provided ineffective assistance of counsel in two main respects: his failure to prohibit the evidence of the petitioner’s blood alcohol content from being admitted into evidence, and his handling of information and evidence regarding a quit claim deed executed by the petitioner shortly after the accident that the State got admitted as consciousness of guilt evidence. The respondent generally denied the allegations in the petition, and the matter was tried on July 5 and 6, 2018, after which the parties were given the opportunity to file post-trial briefs. Further procedural and factual history will be provided in the body of this decision as necessary.
II. Motion to Dismiss Blood Evidence Claims-Collateral Estoppel
In State v. Coccomo, 302 Conn. 664, 31 A.3d 1012 (2011), the Supreme Court examined a claim brought by the petitioner regarding admission of the blood evidence under the "plain error doctrine," which required a determination of whether "the claimed impropriety [admission of the blood evidence] was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal." In rejecting the claim, and also in the course of responding to the dissent, the Supreme Court stated such things as, "[a]ccordingly, the dissent’s conclusion [that it was error to admit the blood evidence] is highly speculative and, therefore, insufficient to raise doubt about the fairness and integrity of the trial court proceedings under the plain error doctrine." (Emphasis added.) Id., 690. One of the petitioner’s claims in the present case is that her attorney was ineffective for failing to prohibit those blood test results from being admitted into evidence. In order to examine whether the petitioner suffered prejudice under the Strickland standard, the "[petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Emphasis added.) Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
On December 4, 2018, subsequent to the close of evidence, Boria v. Commissioner of Correction, AC 39715 (December 4, 2018) was released. In that case, the Court ruled that a petitioner who had previously litigated a claim that counsel was ineffective in advising him in relation to a guilty plea was collaterally estopped from pursuing a due process claim alleging that his plea had not been knowingly, intelligently and voluntarily entered, because he had already necessarily litigated the issue of whether his plea was knowingly, voluntarily and intelligently entered as part of ineffective assistance claim. Given the similarity between the "sufficient to raise doubt about the fairness and integrity of the trial court proceedings" under the plain error doctrine and the "probability sufficient to undermine confidence in the outcome" under Strickland, the Court ordered the parties to provide additional briefs on the issue of whether the petitioner should be collaterally estopped from litigating claims regarding admission of the blood evidence.
In short, the both parties submitted thorough and well-written briefs that came to the conclusion that the appeal process did not provide the petitioner with the "fair and full opportunity" to litigate the blood evidence that is contemplated by the rules of collateral estoppel. In other words, the parties are unified in their argument that the petitioner has never had the opportunity to actually litigate and make a full record of the allegations she has set forth in this, her first habeas petition. E.g., Sellers v. Work Force One, Inc., 92 Conn.App. 683, 686, 886 A.2d 850, 853 (2005) ("An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined"). After due consideration, the Court agrees with the parties, and, therefore, finds that the petitioner is not collaterally estopped from litigating the blood evidence claims. Id.
III. Law and Discussion
"The 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, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id., 688. "[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances." Id. "Judicial 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." Id., 689. "Thus, a court ... must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. [The petitioner] must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance ... [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id., 690.
Under the second prong of the test, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id., 691. "[A]ctual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Id., 693. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. "The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 694. "An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification, ’ and the like." Id., 695. The court "must consider the totality of the evidence before the judge or jury." Id. "In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner’s failure to prove either is fatal to a habeas petition." (Internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).
"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." (Citations omitted; internal quotation marks omitted.) Boyd v. Commissioner of Correction, 130 Conn.App. 291, 297-98, 21 A.3d 969, 974, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011).
Count One-Blood Alcohol Evidence
The petitioner’s first claim of ineffectiveness against her trial attorney surrounds the issue of the blood alcohol evidence admitted against her at trial. Generally, the petitioner claims that counsel was ineffective for failing to prohibit the blood evidence from being admitted, and also for failing to renew his request to exclude the evidence after certain testimony was provided by William Wilson, Stamford Hospital Lab Director. The basis of this claim is that the petitioner insists that a discrepancy revealed at trial between the color of the tube used by the paramedics to draw blood for the blood alcohol test in the ambulance and the color of the tube listed in a hospital computer report brought into question whether the blood tested was actually her blood, which should have resulted in it being kept from the jury. As discussed below, given the entire record of the case, there was no good faith basis in law or fact to have excluded this evidence from jury’s consideration. Therefore, the petitioner’s claim fails. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
Although already laid out in great detail in the Supreme Court decision on this matter; State v. Coccomo, supra, 302 Conn. 682-87 and 690-96; here are additional facts necessary to understand the basis of the petitioner’s claim. At the scene of the accident, care of the petitioner was the responsibility of EMS Paramedic Kirsten Engstrand. Engstrand testified that the petitioner was considered to be a trauma patient due to the severity of the impact between the vehicles, even though the petitioner did not appear overtly to have serious injuries; that after the petitioner had been secured on a spinal board and placed into the ambulance, she placed an intravenous ("IV") line in the petitioner’s left arm and drew five tubes of blood; that it was a common practice for paramedics to do these blood draws in order to save time, and limit needle sticks, for patients being transported to the Stamford emergency room on trauma calls. Engstrand testified that she selected the standard array of tubes used in a trauma situation, commonly referred to as a "rainbow" by medical personnel due to the multi-colored tube tops. The "rainbow" consisted of tubes with pink, green, purple, gold, and blue tops. The color of each tube top provides information to knowledgeable medical and lab personnel about the type of chemicals, if any, contained inside the tube, and the type of testing and analysis that can be performed on the sample. After drawing the samples, Engstrand placed the tubes into a plastic biohazard bag, which she then zip-lock sealed and taped to a 1 liter IV fluid bag hanging from a hook in the roof of the ambulance. The IV fluid bag was attached to the petitioner’s left arm by a IV fluid tube connected to the same catheter that Engstrand had used to draw the blood tubes. When they reached Stamford Hospital, Engstrand placed the IV bag, biohazard bag still affixed, between the petitioner’s legs and wheeled her stretcher directly into the ER trauma. Once inside the trauma bay, the petitioner’s care provided a verbal report on her condition to Nurse Toren Utke, and transferred the petitioner’s care directly to him.
Nurse Utke testified that he took the IV bag and hung it on a hook above the petitioner’s bed, leaving the biohazard bag attached until patient identification labels from the registration department were ready. Once the petitioner’s registration had been processed, a sheet of patient identification labels, similar to a sheet of address labels, was printed out and placed into the petitioner’s chart. Each patient identification label contained the petitioner’s name, sex, date of birth, a unique patient number, and other unique identifying personal information. Hospital protocol was to affix one of these identification labels to each document and item related to the petitioner’s chart. In accordance with hospital protocol, Nurse Utke removed the blood tubes from the biohazard bag, placed one of the petitioner’s patient identification label on each of them, and put them all back into the biohazard bag with a lab requisition form, which also had an identification label affixed to it, requesting a "trauma panel." A "trauma panel" was an order that notified the laboratory to perform a particular set of standard tests, which included chemical analysis for blood alcohol content ("BAC"). Nurse Utke then personally placed the samples and requisition form into a canister in the pneumatic tube delivery portal in the emergency room wall, and sent it to the hospital lab.
The system is described as similar to the tube and cartridge systems commonly used at bank drive-up windows.
The only person working in the hospital laboratory that evening was supervisor Mariela Borrero. When canisters arrived at the laboratory, she was responsible for retrieving the items and performing the tests required. While she could not specifically remember handling the petitioner’s samples, she, and Lab Director William Wilson, testified in great detail about the lab quality control procedures, and there was nothing in the evidence that can reasonably be said to have contradicted their testimony that these protocols were followed. After retrieving the package, Borrero would have opened the canister and compared the patient identification labels on each of the tubes with the patient identification label on the lab requisition form. If they matched, and in this case they did, then she went to the computer terminal in the lab, pulled up the petitioner’s patient record, and entered each of the tests ordered on the requisition form into the system. Entering the tests under the patient’s name at the lab terminal automatically generated new bar coded labels and a corresponding work list of the tests to be performed, all of which printed out from the lab’s printer terminal. The bar coded labels would also have included the patient’s name, which Borrero would have compared against the name on the patient identification labels that had been placed on the blood samples in the ER. If the information on the two labels matched, she would have affixed the lab’s bar coded label directly over the hospital’s patient identification label on each tube. The various machines in the laboratory were capable of reading the bar codes. This allowed the technician to simply place a blood tube into the appropriate machine, which would automatically read the patient information, identify the particular analysis that needed to be run on the sample, to automatically run the required analysis, and to report the results, all without human intervention. The results would be automatically generated and associated with the particular patient’s record.
In the present case, lab technician Borrero testified that she would have placed the corresponding tube of the petitioner’s blood into the Vitros 950, which automatically analyzed the sample, and reported a BAC of .241%, which was experts correlated to approximately .250% at the time of the accident. Further, Borrero, and lab director William, also testified about the "work list" related to this particular case (Exhibit 38 at the trial), which was generated by the lab computer system when the various tests for each of the patients in the ER that evening were entered into the system. The worklist contained handwritten check marks next to the test results for each patient that Borrero identified as her handwriting. She testified that the checkmarks were her way of indicating that she had cross-checked the results of each test to the corresponding patient before releasing the results back to the emergency room.
The legal limit was .08%. General Statutes § 14-227a(a)(2).
Exhibit A, Transcript, Testimony of William Wilson, Lab Director, 1/30/2006, p. 14, ln. 27-p. 15, ln. 9; Exhibit A, Testimony of Mariela Borrero, 1/30/2006, p. 229.
Most importantly, all hospital personnel testified unequivocally that any discrepancy between the patient identification labels on the tubes and the lab requisition form-if the tubes had arrived without a requisition form and no form with a matching patient identification label was provided, if any of the tubes did not have a patient identification label affixed, or if there were any other discrepancy in matching the sample the patient requisition form-that the offending tubes would have been discarded immediately by the lab technician and new blood draws would have been requested from the emergency room.
Exhibit A, Testimony of Nurse Toren Utke, 1/26/2007, p. 87, lns. 17-19; Exhibit A, Testimony of William Wilson, Stamford Hospital Lab Director, 1/30/2007, p. 48 ln. 26-p. 49 ln. 8; Exhibit A, Testimony of Mariela Borrero, Lab Technician, 1/30/2007, p. 231, ln. 9-20.
The petitioner’s first claim is that trial counsel was ineffective for not getting the blood evidence excluded based on testimony provided by William Wilson, Stamford Hospital’s lab director. Some additional background information is necessary to understand this claim. On January 26, 2006, pursuant to a motion that had been filed by defense counsel challenging the admissibility of the blood test evidence, the trial court held an evidentiary hearing outside the presence of the jury at which lab director William Wilson and emergency room Nurse Toren Utke testified. While it appears to have been titled a Porter motion; State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997); which challenges the scientific methodology of the evidence being offered, what the hearing really amounted to, as was recognized by the trial court, was a challenge to the chain of custody of the blood evidence. Wilson generally testified about hospital and laboratory protocols relating to the collection, processing, and laboratory testing of blood samples, as well as the workings of some of the relevant machinery. Ultimately, the motion was denied and the trial court ruled the blood results would be admitted.
At a later point in the trial, Wilson was recalled to testify before the jury. A "rainbow" array identical to what would have been taken by EMS personnel on the night of the accident had been admitted into evidence. In connection with being asked if he could identify the particular tube in the array that would have been used by the laboratory to test for BAC results responded, "The tube that was indicated in the computer is not in that bag [Exhibit # 25]." This was testimony and a subject that had not necessarily been addressed with Wilson during his testimony outside the presence of the jury. The tube that was "not in that bag" was a red-gray speckled topped tube called a "tiger top." An "audit trial" Wilson had run of the petitioner’s computer lab records associated a "tiger top" tube as the type of tube with the sample that was used to generate her BAC results. It is undisputed, however, that Stamford EMS did not carry "tiger tops" in their vehicles. The petitioner asserts that this evidence proves that there was a mistake somewhere at the hospital with her blood and that defense counsel was ineffective for not using this testimony to renew the motion to have the blood evidence excluded from the trial.
Exhibit A, Testimony of William Wilson, Stamford Hospital Lab Director, 1/30/2007, p. 30 ln. 10-11.
While Mr. Wilson’s statement provided obvious fodder for cross examination, given the substantial direct evidence from the witnesses who actually handled the petitioner’s blood, and the unrefuted testimony they provided about quality controls protocols they observed, there is no reasonable basis in law, or fact, upon which this evidence could have, or should have, been kept from the jury by the trial judge. "All relevant evidence is admissible, except as otherwise provided by the constitution ... the General Statutes or the common law." Connecticut Code of Evidence sec. 4-2. "Relevant evidence means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence." (Emphasis added.) Connecticut Code of Evidence sec. 4-1. The petitioner’s intoxication level was directly relevant to the operating under the influence charge, and consumption of alcohol was also relevant to the manslaughter charges. Therefore, evidence supporting, or refuting intoxication was presumably admissible. Id. Further, all of the witnesses who testified to the direct handling of the petitioner’s blood-Paramedic Engstrand, Nurse Utke, and Lab Technician Borrero-if believed, established an unbroken chain of custody from drawing of the petitioner’s blood to the reporting of the lab results. So, while the petitioner can legitimately argue that Mr. Wilson’s statement, if accepted for the meaning she advocates, conflicts with chain of custody evidence offered by other witnesses, there is no reasonable probability that the trial judge would have excluded the blood evidence, even had defense counsel specifically emphasized Wilson’s lone statement. "Inconsistencies in testimony and witness credibility are matters that are within the exclusive purview of the jury to resolve at trial." State v. Aponte, 249 Conn. 735, 756, 738 A.2d 117, 130 (1999). As neither version of events can be considered to be wholly unreasonable, "[t]he jury, as fact finder, was entitled to accept the version of the facts that it found credible." State v. Williams, 258 Conn. 1, 15, 778 A.2d 186, 195 (2001).
It should be noted that almost immediately after this statement, Wilson also testified that the gold topped tube in the EMS array in State’s Exhibit # 35 was an appropriate substitute for the standard "tiger top" tube, just a smaller version:
Q Have you ever seen blood tubes-okay. I’ll withdraw it Have you ever seen blood tubes tested that were in different types of tubes? The little speckled type that you just referred to.
A Yeah, the gold type there
Q Mm-mmm.
A -is an alternative to the speckled type. It has less of a volume. It’s a smaller version.
Q Okay.
A Thisthis is actually a safety tube. It’s a smaller version of the same tube. And this is a safety cap. It present aerosols, when we open the top, from spraying in our eyes. They can’t make this hard plastic in multicolor, so they’ve made it gold instead of the multicolored top that the larger traditional tube has.
Q Okay. So that gold-type tube would be an acceptable tube for a blood sample?
A Be acceptable for the alcohol and chemistry test, yes.(Emphasis added.) Exhibit A, Testimony of Lab Director William Wilson, 1/26/2007, p. 31.
It is also important to emphasize that Mr. Wilson was testifying from a second-hand review of records, while Engstrand, Utke and Borrero testified, as best they could remember, about their direct involvement in handling and processing the petitioner’s blood samples. Further, while defense counsel may not have specifically highlighted the "it’s not there" statement by Mr. Wilson, it was obvious throughout the trial that the defense was attacking chain of custody. Knowing this, the trial court ruled on the defense’s initial attempt to exclude the blood evidence as follows:
I mean, there’s a line of evidence here, which if the jury chooses to accept it, that the defendant’s blood was drawn in the ambulance and taped to a saline bag and then taken down by the emergency department nurse, and a label put on the tubes and put in this pneumatic system up to the lab and tested. And there’s things that the defense will raise to question that chain of events, but I don’t see it as sufficiently affecting the integrity of the sample so that the jury should not be in a position to weigh that evidence and make a decision as to its credibility.
So to the extent the Porter challenge is addressed to the actual machine that did the chemistry, I think the law is clear in Connecticut that that’s an accepted method of testing blood, and is-that question has been settled law in Connecticut.
As to the other matters the defense has raised, I do see them as going to the weight of the evidence, all in the nature of a chain of custody challenge. And I think the custody is sufficient to allow the jury to consider the test results.(Emphasis added.) (Exhibit A, Transcript, Excerpt of Devlin, J., 1/26/2007, pp 81.) In sum, given the totality of the evidence, since there is no reasonable basis upon which this court can conclude that the trial court could have, or would have, excluded the blood evidence from the jury’s consideration; State v. Aponte, supra, 249 Conn. 756; the petitioner has suffered no prejudice. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783. Therefore, the claim fails, and there is no need for the Court to specifically address defense counsel’s performance.
Given the court’s finding above that there was no reasonable basis to believe that the jury would have, or should have, been prohibited from determining any alleged discrepancies in the handling of the blood evidence, the following additional claims of ineffectiveness regarding the blood evidence in Count One, paragraph 31g-In failing to properly preserve the objection to the chain of custody evidence regarding the blood sample; and 31h-In failing to argue in the Motion for Judgment of Acquittal that the difference in the color of the tube top rendered the State’s proof insufficient, have also necessarily been resolved, so they will not be addressed independently.
The petitioner’s next claim, which is closely related, is that trial counsel was ineffective for failing to emphasize the absence of the red-gray "tiger top" tube exposed by Mr. Wilson’s testimony in his closing arguments to the jury as creating reasonable doubt that the blood analyzed was the petitioner’s. The court finds that counsel’s performance met constitutional requirements and, even if it had not, the petitioner suffered no prejudice, because there is no reasonable basis to believe the outcome would have been different had defense counsel emphasized this single statement in his closing argument. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
"The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Strickland v. Washington, supra, 466 U.S. 688. "[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances." Id. "Judicial 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."
Reviewing the closing arguments, it is true that defense counsel failed to directly mention Mr. Wilson’s "it’s not there" statement during his closing argument. Even absent this specific reference, however, it was abundantly clear to anyone participating in this trial that, from the moment the first witness took the stand, defense counsel was attacking the collection and handling of the petitioner’s blood from her first interaction with paramedics to the final lab results. Defense counsel’s cross examination of each witness was thorough and exhaustive. The court can find no support in the law that review of the reasonableness of defense counsel’s conduct can be so hyper-technical that he could spend the entire trial emphasizing, with every medical witness who testified, that there were mistakes and violations in protocol, yet be found to have performed "unreasonably" for failing to directly mention a single statement of a lone witness during his closing arguments. Id. Further, since counsel elicited the testimony before the jury, it was free to consider and credit it as they saw fit, notwithstanding his failure to specifically mention it in closing. State v. Williams, supra, 258 Conn. 15. Therefore, the Court finds that counsel’s performance in this respect met constitutional requirements. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
The Court also finds that the petitioner was not prejudiced by defense counsel’s failure to specifically mention Mr. Wilson’s statement in his closing argument. Id. The petitioner insists that her claim that the blood evidence should have been excluded is supported by what she argues to be substantial other evidence that contradicted the extremely high .241% BAC results. In other words, the petitioner argues that emphasizing Lab Director Wilson’s "it’s not in that bag" statement along with other evidence that contradicted intoxication would have changed the result, because a mistake was the only possible explanation for such high BAC results. This, however, is an unrealistic and one-sided view of the evidence.
There is no dispute that the petitioner, by her own admission, drank at least one and one-half to one and three-quarters cups of sangria at the dinner party shortly before the accident. It is also true that those witnesses from the dinner party who were called as witnesses at the criminal trial testified that the petitioner did not appear to be overtly intoxicated or in a condition where she could not drive. It is also uncontroverted that the petitioner was apparently able to walk and talk at the scene of the accident, and scored a "perfect" score on the Glasgow coma scale when tested at the hospital. The petitioner also emphasized some of the testimony provided by the State and defense toxicology experts, who both indicated that a person with a .241% BAC or higher would likely exhibit overt signs of intoxication, may appear "sloppy drunk," might not be sitting up straight, and would likely exhibit overt signs of motor and cognitive impairments. While the petitioner is correct that is evidence, taken alone, would seem to give credence to Mr. Wilson’s statement and raise serious questions about the validity of the petitioner’s .241% BAC results, these facts were not taken alone, and there was substantial evidence, if accepted by the jury, that contradicted each of these conclusions.
To begin with, although the petitioner was able to converse with people at the scene of the accident, she was heard screaming, "Help us!" before being extricated from her vehicle. While the defense at trial attempted to frame this as the petitioner seeking help for all parties involved in the accident, she was alone in her vehicle, and there was uncontroverted testimony that she never asked any medical personnel, at the scene or at the hospital, about the well-being of the parties in the other car. There was also testimony that described the petitioner as being confused on her whereabouts, at times, and not being able to remember whether she was driving or that she had even been in an accident. Regarding the "perfect" score on the Glasgow coma scale, several of the medical personnel testified that there is no direct relationship between a Glasgow coma scale score and a person’s level of intoxication. One nurse testified to experiencing persons with BAC levels that should be "incompatible with living," but who were walking and talking about the ER. There was also evidence that even a highly intoxicated person could obtain a perfect score on the Glasgow coma scale simply being able to blink their eyes and move extremities on command, and to know where they were. Additionally, the State’s expert toxicologist later qualified his testimony about the overt signs of intoxication one would expect people in the presence of a person with a BAC of .241% to report, admitting that those observations would be impacted by whether those other parties were consuming alcohol themselves, the length, nature and purpose of their interaction with the subject, as well as other situational factors. Finally, while the petitioner insists that the only actual evidence of her drinking was the relatively small amount of sangria she consumed at the dinner party, which could not have accounted for her extremely high BAC results, she ignores the alleged admission she made to EMS Paramedic Engstrand that she "had a few glasses of champagne and a glass of wine at a party downtown." This evidence could have, if accepted, provided the jury with a reasonable basis for explaining the difference between what people at the house party saw the petitioner drink and the amount experts testified she would have needed to drink in order to reach a .241% BAC. Most importantly, however, and as argued by the State during its closing argument, the State was not obligated to prove where, when, or how many drinks the petitioner consumed in order to meet its burden of proof as to any of the charges.
A Fifteen [on the Glasgow coma scale].
Q Do you find that in any way at odds with somebody who’s got a .241 alcohol?
A You know, do I find it at odds? Probably not. Alcohol level in the ER, or anywhere, we can have people that have alcohol levels that are basically incompatible with living. Such as somebody that doesn’t drink all the time would never get to that alcohol level, because they would have
Q They’d be comatose.
A -they would have died.
Q Mm-mmm.
A So, but some of those people walk to the bathroom. Okay. So, you know, we’ll ask them, they’ll say they have to pee. I mean, they’re telling you that they have to do it and their alcohol level is someplace higher than ours would ever be. And then there are people that have alcohol levels of 241 that get intubated, because their neuro status has just decreased so much that they’re not breathing.
Q Average person weighing 120 pounds, they’ve got a .241. Are they going to do a 15 on this?
A They could. They could. And they could or they could be intubated.Exhibit A, Testimony of Theresa Miano, Stamford Hospital Charge Nurse, 1/30/2007, pp. 198-99.
Q Would-do you remember the Glasgow Coma Scale on her? I think it’s 15. Does that sound right?
A Yes.
Q Is that inconsistent with somebody who’s intoxicated, or is there any relationship at all?
A No. Glasgow Coma Scale looks at your eyes, you know, motor, speech. So if your eyes are open, you’re talking and you’re moving everything, you’re a Glasgow 15.
Q Well, if somebody was intoxicated, wouldn’t they do poorly on that?
A If there was, you know, severely-if they were intoxicated where they were slurring their speech or weren’t following commands, then the level of-of Glasgow Coma Scale would be lower. Yes.Exhibit A, Testimony of Dr. James Sarnelle, 1/26/2007, pp. 167.
For instance, when asked if one would have expected people speaking with the petitioner to have noticed slurred speech, given the high level of intoxication reports, he testified as follows:
Q Could you-could you carry on a rational conversation with that person?
A I hate to split hairs, but it kind of depends on the nature of the conversation. If it’s, "What time is it?" I think we could have a rational conversation over the time. If it’s, you know, something beyond that, then perhaps not. So, you know, again, it really depends on the nature of the interaction.Exhibit A, Testimony of Dr. Robert Powers, State’s Expert Toxicologist, 2/1/2007, pp. 184.
Experts for both sides testified at trial that a person would have to consume the equivalent of approximately eight (8) or more alcoholic drinks over the course of an hour in order to reach the intoxication level found in the petitioner’s blood. (See, Exhibit A, Testimony of Dr. Robert Powers, 2/1/2007, pp. 163, ln. 21-pp. 164, ln. 5.)
Exhibit A, Testimony of EMS Paramedic Kirsten Engstrand, 1/25/2007, p. 86. In fairness to the petitioner, however, it should be noted that, despite investigation, the State was unable to produce any independent evidence placing the petitioner any downtown bar that evening, and the petitioner denied consuming any alcohol prior to the house party or to being downtown in her testimony at the criminal trial.
In summary, while there were clearly what could be characterized as inconsistencies in the State’s evidence, every criminal trial has evidence that could be characterized as inconsistent, if the jury chooses to believe it. When viewed in light of the whole criminal trial, however, these claimed inconsistencies were far outweighed by evidence that supported a finding that the chain of custody of the petitioner’s blood was properly. Frankly, the inconsistencies pointed to by the petitioner are largely at odds with the material weight of the entire testimony offered by the particular witnesses who offered the cited testimony, not to mention others who testified on the same subjects. So, again, this Court finds that it is of no consequence whether defense counsel had focused directly on Mr. Wilson’s "it’s not in that bag" statement in his argument before the trial court, in his motion to judgment of acquittal, or in summation before the jury, because, given all of the evidence produced at trial, there is no reasonable probability that the result of the proceedings would have been different or more favorable to the petitioner. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783. Therefore, the petitioner has suffered no prejudice, so her claims related to admission of the blood evidence fail. Id.
Count Two-Quit Claim Deed Evidence
The petitioner’s next claim is that defense counsel was ineffective for having failed to prohibit the State’s use of a property transfer executed by the petitioner several days after the accident as "consciousness of guilt" evidence. The following facts, which appear to be undisputed, provide additional background for this issue. Beginning in about 2002, the petitioner held a one-half interest with her mother in the home the petitioner lived in with her husband and children. At the time of the accident, the property was valued at approximately $ 500, 000. At about 6:00 a.m. the morning following the accident, the petitioner learned for the first time, from her mother, that the three people in the other vehicle had perished as a result of the accident. The petitioner, who suffered a broken foot in the accident, remained at Stamford Hospital until July 29, 2005. On August 5, 2005, she went to her lawyer’s office and executed a quit claim deed transferring all of her interest in the property to her mother for no "less than $ 100" consideration, and the deed was recorded on the land records the same day. Attorney Sherman learned of the property transfer sometime early on in the representation and questioned the petitioner about it. During a meeting at Attorney Sherman’s office sometime in around January 2006, he advised the petitioner to reverse the transfer, "because it did not look good." The petitioner apparently voiced her objections, however, at a meeting in Attorney Sherman’s office in March 2006, he had the petitioner’s mother execute a quit claim deed reversing the transfer and returning the petitioner to a fifty percent owner. This new deed was recorded on the land records on March 14, 2006.
At the criminal trial, the State sought to admit the quit claim deed transferring the petitioner’s interest in the property to her mother as "consciousness of guilt." The theory offered by the State was that the transfer was motivated by the petitioner’s desire to divest herself of assets in order to immunize herself from potential civil liability for the deaths of the three victims. Defense counsel objected, and a hearing was held outside of the jury’s presence. At the initial hearing, Attorney Sherman primarily argued that claim that the petitioner transferred the property in order to avoid potential civil liability was inadmissible and irrelevant in a criminal case. He argued that, although a transfer of assets may acknowledge being involved an accident, which was not in dispute, it did not relate to the elements of any of the crimes with which the petitioner was charged. He also emphasized the difference between the civil "preponderance of the evidence" standard and the "proof beyond a reasonable doubt" required in criminal cases. At the end, Attorney Sherman also insinuated there may have been a valid reason for the transfer, although never stating exactly what that reason was, but that establishing it "would necessitate us putting on the stand-which I can-we can do-members of her family as to the basis of the transaction, which is not necessarily so nefarious." He then asked the court for "24 hours" to brief the matter, which the trial judge granted.
See, Exhibit A, January 30, 2007, beginning at p. 143.
Exhibit A, January 30, 2007, p. 146, ln. 24-147, ln. 1.
The following day, instead of calling any witnesses to testify or filing any written memorandum with the court, the defense orally argued, in essence, the same distinction between civil and criminal burdens of proof and theories of liability that had been offered the day before. The defense also added the argument that the probative value of the evidence was outweighed by the prejudice that would result from the jury hearing the petitioner had divested herself of assets shortly after an accident that resulted in the deaths of three people. Finally, the defense argued that it would result in confusion for -the jury and a waste of time, if the defense were required to call a series of witnesses to refute or explain what they characterized as a collateral issue.
While "consciousness of guilt" was an evidentiary theory accepted in Connecticut criminal and civil courts long before the petitioner’s case; e.g., State v. Ford, 109 Conn. 490, 146 A. 828, 829 (Conn. 1929) ("The conduct of the accused in leaving the bodies of the girls lying in the road while he sped on with his car ... may be considered by the trier in determining his guilt, since it tends, unexplained, to prove a consciousness of guilt"); Kotler v. Lalley, 112 Conn. 86, 151 A. 433, 434 (Conn. 1930); the State’s theory in the petitioner’s case is notable, because it appears to be the first reported case where the "guilt" offered in a criminal case was strictly tied to conduct evidencing a defendant’s attempt to avoid civil liability. Notwithstanding the apparent novelty of the State’s theory, the petitioner focuses on the value of the evidence from the wrong perspective. That is, the petitioner focuses on the number of innocent explanations there may have been for the property transfer, whereas the appropriate inquiry to determine the admissibility of evidence is whether the proffered evidence tends to make a material fact more or less believable. Connecticut Code of Evidence sec. 4-1. The inquiry is no different here because the evidence in question was offered on the theory of "consciousness of guilt," and the fact that the conduct may also have an innocent explanation did not diminish its admissibility. State v. Holmes, 64 Conn.App. 80, 86, 778 A.2d 253, 257 (2001) ("The fact that the evidence [of the defendant’s flight] might support an innocent explanation as well as an inference of a consciousness of guilt does not make a [consciousness of guilt] instruction on flight erroneous"). Since the Court finds, as will be discussed in further detail below, that there was no reasonable legal basis upon which the quit claim transfer could have, or should have been excluded from evidence, the petitioner was not prejudiced in this matter. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
"Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue ... One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable ... Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter." State v. Erick L., 168 Conn.App. 386, 400-01, 147 A.3d 1053 (2016). The State had the burden of proving the charges pending against the petitioner. In support of that theory, the State offered the quit claim deed on the theory that a person still convalescing from injuries transferring all of her interest in a $ 500, 000 property days after an accident that resulted in the deaths of three people was inconsistent with someone who did not have a guilty mind, and this evidence, if accepted, could clearly make that fact more believable. Further, the law does not require that a piece of evidence offered establish the ultimate fact conclusively, but only that it be relevant to that ultimate point. Id.
The petitioner claims that she provided Attorney Sherman with the names of numerous fact witnesses who could have been available to testify before the judge or the jury to establish her innocent motive for the transfer, which would have resulted the trial court excluding the evidence or, if it were admitted, the jury rejecting it. The petitioner also claims that defense counsel could have verified that the quit claim transfer had been initiated weeks before the accident by contacting her divorce attorneys. There does not appear to be any dispute that the petitioner was unhappy in her marriage, or that she had spoken to her friends, including some at the party the evening of the accident, about the fact that she was moving forward with divorce proceedings. When examined in the context of the entire case, however, these claims are also insufficient, because there is no reasonable probability that this information would have resulted in a different outcome. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
The most glaring issue with the petitioner’s claim that completing the property transfer so soon after the accident was necessary in order to position herself to commence divorce proceedings against her husband, which her arguments and claims insinuate was imminent, is the fact that she did not commence divorce until after the criminal trial was over. The divorce action was not initiated until September 29, 2006, some fourteen months after the accident, and nine months after the criminal trial was completed. So, had defense counsel offered the urgency of preparing for divorce as the "innocent" basis for the petitioner going through with the property transfer so soon after the accident, the defense would then have been left explaining the obvious, and easily discovered, fact that no divorce action had been filed. The fact that no divorce had been filed as of the time of the petitioner’s trial, at a minimum, place the question of the petitioner’s true motivation for transferring the property so soon after the accident up for debate. That being said, it is not reasonably likely, even had the divorce theory, or the witnesses supporting it, been presented, that the trial court would have excluded the quit claim evidence. State v. Aponte, supra, 249 Conn. 756. As to the portion of this claim that defense counsel could have verified that the original appointment to transfer the property had been made prior to the accident by consulting with, or calling her divorce attorneys, she cannot prevail on this claim, because those witnesses did not testify before the habeas court. Nieves v. Commissioner of Correction, 51 Conn.App. 615, 622-24, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999). In the end, the Court finds that the petitioner has suffered no prejudice as to these claim, because it is not reasonably likely that any of this information would have resulted in the evidence being excluded. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
Coccomo, Tricia v. Coccomo, John A., III, FST-FA 06-4010182.
The petitioner also claims that trial counsel was ineffective for failing to call these same witnesses to testify at trial to provide information on the innocent motive behind the quit claim transfer. In essence, these witnesses simply reiterated or corroborated testimony the petitioner provided during her trial testimony. Generally, they witnesses testified to having conversations with the petitioner about being unhappy in her marriage for some time, about her husband’s alleged financial mismanagement, and that she had made the decision to move forward with filing for divorce. Adding, or attempting to add, the testimony of these witnesses, however, would not have changed the outcome of the trial; Hall v. Commissioner of Correction, supra, 124 Conn.App. 783; because none of them added anything that the petitioner had not testified to herself at trial.
The petitioner took the stand in her own defense at the criminal trial and testified on direct examination about how long it took her to work up the "nerve" to move forward with a divorce, about discussing her potential divorce with numerous friends, including some friends the night of the dinner party, about consulting with divorce attorneys, and about her husband’s alleged financial mismanagement. She also testified on direct examination that an original meeting to execute the quit claim deed for what would have been the day following the accident had been scheduled weeks prior, but was canceled because of her stay in the hospital. These aspect of the petitioner’s testimony went wholly unchallenged by the State, the only direct exchange going as follows:
Q: Did anybody tell you that after the collision that occurred, and that people had died, that transferring your personal property was called a fraudulent transfer?
MR. SHERMAN: Objection. It’s asking for hearsay. Did anybody tell you?
THE COURT: Objection sustained.
BY MR. VALDES:
Q: Did you tell your attorney that you had been in an accident where people had died, before you signed the deed after the collision?
A: I didn’t speak to that attorney. I had actually just gone after to sign the work. My mother had taken care of all of the paper work.
Q: You testified earlier that you took Long Ridge Road two times on that day ...(Exhibit A, Transcript, Testimony of Tricia Coccomo, 2/2/2005, p. 208, ln. 3-19.) Given the petitioner’s testimony on the motivation and timing of the transfer was neither impeached or challenged in any real sense by the State, the Court agrees with the respondent that, had trial counsel attempted to present these lay witnesses, the evidence would likely have been ruled inadmissible as cumulative; Code of Evidence § 4-3; or as improper bolstering of the petitioner’s testimony. Code of Evidence § 6-11(a). Further, given the collateral relationship of the deed to the crimes charged, when viewed against the substantial direct evidence against the petitioner, it is not reasonably likely that the result of the trial would have been more favorable to the petitioner, even had some of these fact witnesses been allowed to testify. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783. As such, the petitioner’s claim fails, because she suffered no prejudice. Id.
Connecticut Code of Evidence § 4-3 Exclusion of Evidence on Grounds of Prejudice, Confusion or Waste of Time, provides, in pertinent part: "Relevant evidence may be excluded if its probative value is outweighed by the danger of ... waste of time or needless presentation of cumulative evidence."
Connecticut Code of Evidence § 6-11 Prior Consistent Statements of Witness; Constancy of Accusation by a Sexual Assault Complainant, provides, in pertinent part:
(a) General Rule. Except as provided in this section, the credibility of a witness may not be supported by evidence of a prior consistent statement made by the witness.
(b) Prior consistent statement of a witness. If the credibility of a witness is impeached by (1) a prior inconsistent statement of the witness, (2) a suggestion of bias, interest or improper motive that was not present at the time the witness made the prior consistent statement, or (3) a suggestion of recent contrivance, evidence of a prior consistent statement made by the witness is admissible, in the discretion of the court, to rebut the impeachment ...
Finally, the petitioner offers two more arguments related to the deed evidence. First, that Attorney Sherman was ineffective for eliciting testimony through the petitioner that she later reversed the transaction, because that admission emphasized that the petitioner had a guilty conscience. As to that matter, in the course of eliciting testimony about the property transfer from the petitioner, Attorney Sherman asked her if she had reversed the transfer and why, and she responded that she reversed it on his advice, and because he had indicated the transfer was not appropriate. As above, given the collateral relationship of the deed when viewed against the substantial direct evidence against the petitioner, the Court finds that it is not reasonably likely that the result of the trial was at all impacted by this single answer. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
The second argument is that Attorney Sherman was ineffective for failing to address the innocent purposes for the transfer in his closing argument. As discussed in great detail throughout the body of this decision, the overall evidence against the petitioner was substantial, and this deed issue was relatively minor, and collateral. In fact, although the Court gave a "consciousness of guilt" instruction, neither the State nor defense mentioned the property transfer during their closing arguments. Attorney Sherman, as he did throughout the trial, focused on what he believed to be the inconsistencies in the evidence that went directly to the petitioner’s guilt-the chain of custody of the blood evidence and the differences in testimony from the medical, emergency, and police personnel who interacted with the petitioner that evening. The Court can find nothing unreasonable in the performance of an attorney giving focus to the main theory of defense during closing argument and forgetting, or intentionally avoiding, to reference to a relatively minor and collateral issue. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783. That neither party took the time to address this issue directly during closing argument gives a fair indication of its relative significance to the case as a whole. Given the substantial amount of directly relevant evidence the jury had to consider in this case, much of it very technical, there is no reasonable basis to conclude that failing to mention the quit claim deed evidence in closing arguments played any significant role in the ultimate outcome. Id. As such, again, the petitioner has suffered no prejudice. Id.
IV. Conclusion
In conclusion, the Court finds that the claims relating to admission of the blood evidence and admission and use of the quit claim deed evidence fail. Both pieces of evidence were clearly relevant, and therefore presumably admissible in support of the State’s case. Connecticut Code of Evidence sec. 4-1. While the petitioner offers numerous arguments as to how defense counsel could have prevented the blood and quit claim evidence from being admitted at trial, none of them offers a basis in law, or fact, upon which the presumption of their admissibility would have been overcome. Therefore, there is no reasonable probability that any of the things alleged by the petitioner would have resulted in the trial court excluding either piece of evidence from the jury. E.g., State v. Aponte, supra, 249 Conn. 756 ("Inconsistencies in testimony and witness credibility are matters that are within the exclusive purview of the jury to resolve at trial"); State v. Holmes, supra, 64 Conn.App. 86. Further, given the relatively tangential nature of the quit claim deed to case as a whole, the Court also finds that there is no reasonable probability that further emphasizing the alleged innocent explanation with additional witnesses, or during oral argument, would have made a difference in the outcome of the trial. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783. In the end, the petitioner has failed to present a reasonable basis to conclude that either the trial court’s evidentiary rulings, or the jury’s verdict, would have been more favorable based on any of the errors she alleges. Id. Since the Court finds no prejudice, there is no reason to examine counsel’s performance. Id
Based on the foregoing, the petition for writ of habeas corpus is DENIED. Judgment shall enter in favor of the RESPONDENT.