Opinion
CV185018994S
10-30-2019
Kyle Freitag v. State of Connecticut et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Sommer, Mary E., J.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#115.00)
SOMMER, J.
I. INTRODUCTION
The respondents have filed a motion for summary judgment supported by a memorandum of law dated December 31, 2018 and transcripts of the petitioner’s plea and sentencing hearings including the sworn testimony of the petitioner, his father, and two of his lawyers. The respondent argues that because these documents show that no genuine issue of material fact exists, the petitioner cannot demonstrate that he is entitled to a new trial. As a result, the respondents ask that summary judgment enter in their favor. In his responding memorandum, the plaintiff alleges that he is entitled to a new trial because he claims that there is newly discovered evidence which would materially affect the outcome of his case. The parties argued the subject motion at short calendar on July 29, 2019.
II. PROCEDURAL BACKGROUND
On January 14, 2015, the petitioner pleaded guilty to charges of murder in violation of General Statutes § 53a-54a and assault in the first degree in violation of General Statutes § 53a-59(a)(1). On April 7, 2015, the trial court imposed a sentence of thirty years incarceration. Thereafter, on September 15, 2015, the petitioner filed a petition for habeas corpus relief. Freitag v. Warden, State Prison, Superior Court, judicial district of Tolland, Docket No. CV15-4007525-S. Counsel was appointed and a trial on the merits of the petitioner’s claims was held on July 16, August 10, and November 1, 2018. While pursuing habeas corpus relief, the petitioner also initiated the instant petition for a new trial. The parties were awaiting the habeas court’s decision as of the date they argued this motion. His claims are set forth in a revised petition dated September 14, 2018.
III. FACTS UNDERLYING PETITIONER’S CONVICTION
At the plea hearing in January 2015, the prosecutor set forth the factual basis for the petitioner’s plea, as follows.
[A]round 5:30 or so in the afternoon in Norwalk going down Fort Point Road, this was October 30th, 2012, the defendant was the passenger in a van that was being driven by a friend of his, it was actually— it was his van, he saw a scooter with a Mr. Johnson on it at the time, it looks like that day, he did not recognize Mr. Johnson but he did recognize the passenger, Bancroft Daley, he had had prior meetings with Bancroft Daley and definitely recognized him.
According to the defendant, when he saw Mr. Daley put up his hood and reach for something in his waist, he shot both Mr. Daley and Mr. Johnson using a thirty-two caliber revolver he had with him. Mr. Johnson was unarmed, Mr. Daley had a three-inch pocket knife in his pocket at that time. Mr. Johnson was pronounced dead at Norwalk Hospital and Mr. Bancroft Daley remains paralyzed from the mid-back down, is unable to walk and has a "poor prognosis."
In his petition, the petitioner claims that the State suppressed information regarding an alleged "hit list" from 2008 as well as information about his counsel’s health. He claims that because the name of one of the individuals he shot on October 30, 2012 was on the 2008 list that information was arguably exculpatory in nature as it would have provided the basis for a claim of self-defense. The State argues that the petitioner’s claims do not constitute "newly discovered evidence because (1) the petitioner was well-aware of the alleged 2008 "hit list" at the time he entered his plea and (2) information that his previous counsel, Attorney Frank O’Reilly, suffered from health issues was not "suppressed" by the State. The State argues that this information was both known to his attorneys and generally publicized by news articles. The State therefore argues that because no genuine issue of material facts exists, summary judgment is warranted. Alternatively, the State argues that such information does not constitute "newly discovered evidence" and, therefore, does not entitle the petitioner to a new trial.
IV. APPLICABLE LAW AND ANALYSIS
A. Summary Judgment
"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ..." (Citations omitted.) Ascuitto v. Farricielli, 244 Conn. 692, 696 (1998). "It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court ..." (Citation omitted; quotation marks omitted.) Rafalko v. University of New Haven, 129 Conn.App. 44, 49 (2011). "A material fact is one that will make a difference in the case." Id. at 50.
B. Whether A Genuine Issue of Material Fact Exists As to Count One
In the first count of his petition, the petitioner alleges that the State "failed to disclose to the petitioner a memo that the Norwalk Police Department had generated concerning a ‘hit list’ of gang related nature that had this petitioner’s address on it. He claims that this list identifies him as a person and his address as a location targeted by gang members. The petitioner recently had a habeas trial where his attorney testified that he had never seen the ‘hit list.’ " Essentially, the petitioner asserts that the State failed to comply with its obligations to supply him with exculpatory evidence in accordance with the principles established in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny. The uncontroverted evidence establishes that petitioner, however, was fully aware of this information for years before the October 30, 2012 shooting. Indeed, he and his father both testified that they were aware of it several years before he killed Dajon Johnson and paralyzed Bancroft Daley. Because Brady only requires that the State inform the petitioner of information in its exclusive possession, the State maintains that the petitioner is not entitled to relief and it is entitled to summary judgment against the petitioner.
1. Factual Basis of the Respondent’s Motion
The purported new evidence, that is, the "hit list," is the document which the petitioner argues was not disclosed to him, is a document dated January 17, 2008. The petitioner shot the two victims almost five years later on October 30, 2012 in a drive by shooting from the vehicle in which he was a passenger. The victims were riding a motorcycle. Based on the sworn testimony of the petitioner and other witnesses, as well as in court statements made by his attorneys, he was aware of both the existence and the substance of the 2008 hit list before he entered his plea. At petitioner’s sentencing hearing on April 7, 2015, his third lawyer, Attorney Norman Pattis, referred to the "hit list." He stated that at the time he shot the petitioner "believed he was put on a hit list and marked for death" at the time he shot Messrs. Johnson and Daley. An individual who spoke on the petitioner’s behalf, Amos Brown, Sr., also referred to the list at that hearing. At his habeas corpus trial, the petitioner, his father, and his first attorney all provided sworn testimony that they were aware of the list. The petitioner’s first counsel, Attorney Howard Ehring, testified that he obtained a document from the Norwalk Police Department dated January 17, 2008 regarding its investigation of an alleged hit list that was found in "one of the Norwalk public schools." He provided the petitioner’s next lawyer, Attorney Frank O’Reilly, with "some of the information we had regard[ing] the hit list." Attorney O’Reilly testified that he received Attorney Ehring’s file and reviewed "everything numerous times." When shown the list, however, he could not remember whether he had seen it. Specifically, he stated, "I don’t recall seeing that document. I may have. I don’t recall." Later, he testified, "I was aware of a hit list. I mean I was aware that this was going on ... I don’t recall seeing the exact document, but I was certainly aware of, of all of that turmoil and its effect on Kyle, its effect on his family. I was, you know, certainly considered all of that."
During the criminal proceedings, the petitioner was represented first by Attorney Howard Ehring. Next, he was represented by Attorney Frank O’Reilly. Finally at the sentencing proceeding, he was represented by Attorney Pattis.
The petitioner himself testified that he was fully aware of the alleged "hit list," stating that he was aware "that people wanted me dead" and that he was also aware of the existence of a hit list, having, "always [been] told about it, and the police observations were put on my house when I was younger until I had moved out of the area."
In response to being asked whether he was aware of the hit list, the petitioner’s father testified that he knew about it and tried to provide this information to the petitioner’s second counsel, "... it was actually publicized in, in several [or] all the local newspapers and the news. Actually I have another 8" and a half by 11" file that I offered it to extend to Mr. O’Reilly which he had, he had no interest. But the answer is yes, because it was— actually the judge was— who was presiding over A.J.’s trial said that even at— come out in the court that people were being pursued and, what do they call it— harassing witnesses, that there be penalties in relations to that or something. But it was in the newspapers, this hit list. And it has been— it was circulated and existed."
2. The Brady Standard
Relying on Brady v. Maryland, 373 U.S. 83, 83 S.Ct.1194, 10 L.Ed.2d 215 (1963). Under Brady, a due process violation occurs when there is a discovery "after trial of information which had been known to the prosecution but unknown to the defense." United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976). A defendant who wishes to assert a Brady violation bears the burden of demonstrating that (1) the prosecution suppressed evidence, (2) the suppressed evidence was favorable to the defendant, and (3) it was material. State v. Brown, 242 Conn. 802, 813 (1996). Under Brady, however, "[t]he prosecution has no obligation to produce for [the defendant] evidence or information already known to him, or that he could have obtained from other sources by exercising reasonable diligence." Brown v. Cain, 104 F.3d 744, 750 (5th Cir. 1997). See also Adams v. Aiken, 965 F.2d 1306, 1315 (4th Cir. 1992) (Brady and its progeny pertain to "the prosecutor’s suppression of evidence that was known to the prosecutor but not to the defendant"); Tate v. Wood, 963 F.2d 20, 25 (2d Cir. 1992) ("[t]he rationale underlying Brady is not to supply a defendant with all the evidence in the Government’s possession which might conceivably assist the preparation of his defense but to assure that the defendant will not be denied access to exculpatory evidence only known to the Government"). Indeed, courts have repeatedly held that "[e]vidence known to the defendant or his counsel, or that is disclosed, even if during trial, is not considered suppressed if the defendant had personal knowledge of the evidence ..." (Citations omitted; emphasis in original; quotation marks omitted.) Rasmussen, 225 Conn. at 91 ("[e]vidence not disclosed to a defendant prior to trial is not suppressed if the defendant had personal knowledge of the evidence"); State v. Johnson, 14 Conn.App. 586, 598 (1988). This rule applies so long as the petitioner is competent to stand trial. Johnson, 14 Conn.App. at 598-99.
"The purpose of criminal discovery is to prevent surprise and to afford the parties a reasonable opportunity to prepare for trial ..." (Citations omitted; quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 91 (1993): Thus, for example, a defendant cannot be surprised by his own statements to police. State v. Perez, 181 Conn. 299, 309 (1980). Likewise, where the defense knew of the existence of a witness’ taped statement, but did not investigate further, the government’s failure to turn over the statement did not violate Brady . Stockton v. Murray, 41 F.3d 920, 927 (4th Cir. 1994). Similarly, where a defendant knew that his court-ordered psychiatric examination was videotaped, that information is not considered to be suppressed simply because the state failed to disclose it to his defense counsel. Johnson, 14 Conn.App. at 597-99. See also State v. Joyner, 571 S.W. 776, 778 (Mo.App. 1978) (evidence is not suppressed if the defendant has knowledge of its existence and whereabouts), cited with approval in State v. Perez, 181 Conn. supra at 309; State v. Bryant, 17 Conn.App. 525, 526-28 (1989). "Aware of the existence of potentially exculpatory information, a defendant cannot sit idly by in the hopes that the prosecution will discover and disclose that information and, when the prosecution does not do so, seize upon the prosecution’s conduct as grounds for habeas relief." Stockton, 41 F.3d at 927.
Based on review of the sworn testimony of numerous witnesses and that of the petitioner himself, it is clear that the petitioner, his family, and his first and third attorneys were all aware of the existence of the alleged "hit list." They also knew that threats and violence were aimed at the petitioner and some of his acquaintances at various times between January 2008 and October 2012. Attorney O’Reilly could not recall whether he had seen a police-generated document concerning the list. Nevertheless, he knew that the petitioner had testified for an individual named Amos Brown, Jr., who was charged with murder, and that the victim’s friends may have intended to retaliate against the petitioner. The fact that Attorney O’Reilly testified that he was not able to recall seeing the 2008 hit list in the file which he received from Attorney Ehring falls short of proof that he never saw it. Being unable to remember having seen a document is not the same as never having seen it. Petitioner’s speculation regarding whether Attorney O’Reilly saw the hit list does not stand when measured against the sworn testimony of several witnesses. The petitioner cannot credibly argue that the state withheld evidence that he himself testified he was aware of. The basic fact that was aware of the alleged "hit list" is sufficient to defeat the petitioner’s claim of a Brady violation. Furthermore, the hit list merely reinforces all of the other information that the petitioner possessed about threats against him and is thus cumulative. For these reasons, the petitioner cannot maintain an action for a new trial based on a claim of a Brady violation.
C. Whether a Genuine Issue of Material Fact Exits As To Count Two
In Count Two, the petitioner alleges that his attorney "had an on-going medical condition which would have prevented him from effectively representing the petitioner from all stages, that information was withheld from the petitioner at all times mentioned within his representation of the petitioner." As with the first count, the state argues that the petitioner cannot establish a Brady violation because such information was (1) not suppressed by the prosecutor and (2) not exculpatory as that term is defined. Moreover, he was provided this information before his sentencing in 2015. Despite being in possession of this information, he did not seek to withdraw his plea. For all of these reasons, the State maintains that the petitioner is not entitled to relief.
1. The Factual Basis for Summary Judgment
At his plea hearing in January 2015, the petitioner was represented by Attorney Frank O’Reilly. Before he was sentenced on April 7, 2015, the petitioner retained new counsel, Attorney Norman Pattis. At sentencing, Attorney Pattis discussed prior counsel’s purported health issues. He explained, however, that the petitioner did not intend to move to withdraw his pleas. Attorney Pattis stated, "My client can do no better so long as the State continues to insist on the charge of murder and so we are not withdrawing the plea, but— or moving to asking for permission to withdraw the plea." Indeed, he noted that "it’s not in Mr. Freitag’s interest to" take the case to trial.
At his habeas trial, the petitioner called Attorney O’Reilly and questioned him about his health. O’Reilly explained that, in October 2014, he had an issue on the first day of a trial in federal court. Subsequently, he was examined by his physicians. He explained that his health had no impact on his ability to represent the petitioner.
2. Information Regarding Prior Counsel’s Health
The "Constitution does not require the prosecutor to share all useful information with the defendant." United States v. Ruiz, 536 U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). Rather, under Brady, the State is required to provide a defendant with evidence that is favorable and material to either guilt or punishment. "Impeachment evidence ... as well as exculpatory evidence, falls within the Brady rule ... Such evidence is ‘evidence favorable to an accused’ ... so that, if disclosed and used effectively, it may make the difference between conviction and acquittal." (Citation omitted.) United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The "state’s duty of disclosure is imposed not only upon its prosecutor, but also on the state as a whole, including its investigative agencies ... Nonetheless, knowledge on the part of persons employed by a different office of the government does not in all instances warrant the imputation of knowledge to the prosecutor, for the imposition of an unlimited duty on a prosecutor to inquire of other offices not working with the prosecutor’s office on the case in question would inappropriately require us to adopt a monolithic view of government that would condemn the prosecution of criminal cases to a state of paralysis." (Citation omitted; internal quotation marks omitted; brackets omitted.) Stevenson v. Commissioner of Correction, 165 Conn.App. 355, 366 (2016). Thus, when information is not in the possession of an investigative arm of the prosecution, a Brady claim must fail. See, e.g., Stevenson, 165 Conn.App. at 368 (because the Department of Correction was not an investigative agency the documents in its possession were not "suppressed" by the prosecution).
In this case, Attorney O’Reilly had recently testified that his health had no impact on his ability to represent the petitioner. Moreover, the petitioner does not allege that such information was in the possession of the State of Connecticut. Rather, he asserts that this information was contained in a document that was filed in a separate federal criminal case. It is clear, however, that the petitioner’s trial counsel would have been in possession of the relevant information about his own health. Given that a lawyer’s knowledge is imputed to the defendant, the petitioner cannot establish that the State suppressed this material. Joyce v. State’s Attorney, 84 Conn.App. 195, 200 (2004), State v. Turner, 252 Conn. 714, 729 (2000).
Additionally, the transcript of the court proceedings establishes that the petitioner was aware of Attorney O’Reilly’s health issue prior to sentencing. Indeed, at sentencing, his new counsel, Attorney Pattis, discussed prior counsel’s purported health issues. Nevertheless, the petitioner never moved to withdraw his pleas in accordance with Practice Book § 39-26 et seq. Attorney Pattis explained that decision when he stated, "My client can do no better so long as the State continues to insist on the charge of murder and so we are not withdrawing the plea, but— or moving to asking for permission to withdraw the plea." Indeed, he noted that "it’s not in Mr. Freitag’s interest to" take the case to trial. Thus, the petitioner essentially waived any claim that his guilty pleas were invalid because counsel withheld information from his client.
Practice Book § 39-27 provides that "[t]he grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:
Finally, the information cannot be considered to have any exculpatory or impeachment value. Indeed, it is not material to either the petitioner’s guilt or punishment. Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) ("Brady held ‘that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment ...’ "). Thus, it does not fall within the Brady mandate. Although petitioner argues that the existence of the 2008 hit list could support a claim of self-defense, there is simply no credible basis for this speculation. If anything, the 2008 hit list provides a basis for petitioner’s motive when he shot his victims.
In summary, this information was not suppressed and has neither exculpatory nor Impeachment value. Similarly, it is not material as the courts of this state have articulated. For these reasons, the petitioner cannot demonstrate that he is entitled to relief on the second count of the petition. As a result, the State asks that summary judgment enter in its favor.
D. Whether the 2008 Hit List Qualifies as Newly Discovered Evidence
The State argues that the petitioner’s allegations fail to raise a claim under Brady v. Maryland. They further argue that the petitioner cannot establish that he is entitled to a new trial, on the ground of "newly discovered evidence." For this reason, the respondent also seeks summary judgment on the alternative ground that evidence of the alleged "hit list" and his attorney’s health issues is not "newly discovered."
General Statutes § 52-270 provides for the granting of a new trial "for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases." A petitioner seeking a new trial based upon "newly-discovered evidence" must "demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial ..." (Citation omitted.) Seebeck v. State, 246 Conn. 514, 536 (1998). "By a different result, we mean that the new evidence would be likely to result in acquittal of the petitioner, not merely that it might cause one or more jurors to have a reasonable doubt about the petitioner’s guilt." (Citations omitted; internal quotation marks omitted.) Skakel v. State, 295 Conn. 447, 368 (2010).
As shown above, the 2008 hit list was known to the petitioner and his family through various means including having been published in local news articles due to extensive media attention in this case years before he killed Dajon Johnson and paralyzed Bancroft Daley. As noted above, the record also establishes that the petitioner had information regarding his attorney’s alleged health concern prior to sentencing and that it had no effect on his representation. Nevertheless, he did not seek to withdraw his guilty pleas. Moreover, in order to provide a basis for a new trial the subject evidence or information must be material, in that it would cause a different result at a new trial. The petitioner has failed to establish that information about his attorney’s health was not known to him at sentencing and that this information would have materially affected the outcome of a trial.
In his pending habeas corpus proceeding, the petitioner alleges that Attorney O’Reilly was ineffective for failing to seek a continuance on the ground that he was "medically unable to proceed to trial as scheduled ..." That issue, therefore, is not before this Court.
IV. CONCLUSION
Having considered the facts of this case including the petitioner’s own previous testimony that he knew about the alleged "hit list" for some time prior to the April 7, 2015 hearing, he cannot demonstrate that this list constitutes "newly discovered evidence," that the state withheld evidence or that such evidence, even if found to have been withheld, would materially affect the outcome of a trial. Based on a thorough review of the evidence and applicable case law, considering the evidence in the light most favorable to the non-movant, the court concludes that there are no material facts for a trier to decide and that the petitioner has failed to present a basis for his claim for relief under Brady v. Maryland, supra. The court concludes that the petitioner cannot prove that he is entitled to a new trial. The respondent’s motion for summary judgment is granted.
(1) The plea was accepted without substantial compliance with Section 39-19;
(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
(4) The plea resulted from the denial of effective assistance of counsel;
(5) There was no factual basis for the plea, or
(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant."