Opinion
CV154007598
02-13-2019
Charles FULLENWILEY v. WARDEN, STATE PRISON
UNPUBLISHED OPINION
Hon. John M. Newson, Judge
I. Procedural History
The petitioner was the defendant in two separate matters pending in the Judicial District of Waterbury. He was initially arrested on charges of Risk of Injury and Sexual Assault under Docket Number CR06-0355582-T (the "sex assault case"), which is the focus of this action. During the investigation into the sex assault case, child pornography was discovered on the petitioner’s computer, and he was charged under docket number CR07-359677-T (the "child porn case") with a single count of Possession of Child Pornography in the First Degree, in violation of General Statutes § 53a-96d. Although he had several attorneys represent him during the cases, and represented himself for a period of time, he was represented by Attorney Michael Moscowitz, assigned counsel, at most times relevant to the allegations in this petition. The petitioner entered a guilty plea in the child porn case on June 3, 2008, as the jury was being selected for trial, and received a sentence of twenty years on September 19, 2008. The sexual assault case was continued, and the petitioner ultimately elected to be tried by a jury. On July 22, 2009, the jury returned verdicts of guilty on six counts of Risk of Injury to a Minor, in violation of General Statutes § 53a-21(a)(1), and one count under § 53a-21(a)(2), two counts of Assault Third Degree, in violation of General Statutes § 53a-61(a)(1), and one count of Sexual Assault First Degree in violation of General Statutes § 53a-70(a)(1). On October 16, 2009, the petitioner was sentenced to a total effective term of 55 years, suspended after the service of 40 years, with 15 years of probation, to run consecutively to the sentence he was serving in the child porn case. The petitioner, represented by Attorney Carlos Candal, appealed the convictions in the sexual assault case, which were affirmed. State v. Charles F., 131 Conn.App. 798, 28 A.3d 1023, cert. denied, 303 Conn. 911, 32 A.3d 964 (2011).
General Statutes § 53a-96d Possession of Child Pornography in the First Degree, provided, in pertinent part, at the time of this offense, "(a) A person is guilty of possessing child pornography in the first degree when such person knowingly possesses fifty or more visual depictions of child pornography ..."
While these two cases are related to each other, the petitioner separately challenged the effectiveness of Attorney Moscowitz in the child porn case in a separate petition filed on July 3, 2012, which was denied following a trial. Fullenwiley v. Warden, State Prison, Superior Court judicial district of Tolland, Docket No. TSR-CV12-4004821S (Sfrerrazza, J., Dec. 5, 2014), appeal dismissed, sub nom, Fullenwiley v. Commissioner of Correction, 163 Conn.App. 761, 134 A.3d 1259, cert. denied, 321 Conn . 907, 135 A.3d 279 (2016).
At the time of the offenses, General Statutes § 53-21 Injury or risk of injury to, or impairing morals of, children. Sale of children, provided, in pertinent part: "(a) Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child ..."
General Statutes § 53a-61. Assault in the Third Degree, provided, in pertinent part at the time of the offense: "(a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person ..."
General Statutes § 53a-70 Sexual Assault in the First Degree, provided, in pertinent part, at the time of the offense: "(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person ..."
The petitioner commenced the present action on October 26, 2015. The amended petition alleges ineffective assistance against trial counsel Moscowitz in count one, denial of constitutional right to speedy trial in count two, ineffective assistance against appellate counsel Candal in count three, and actual innocence in count four. The respondent filed a return generally denying all claims. The matter was tried on September 18 and 21, 2018, and the parties were granted the opportunity to file post-trial memoranda. Further facts and procedural history will be provided as necessary throughout the body of this decision.
II. 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).
COUNT ONE— Ineffective Assistance of Trial Counsel— Michael Moscowitz
The petitioner’s first claim is that Attorney Moscowitz was ineffective for failing to pursue his speedy trial rights, despite the fact that the petitioner insisted that he do so. Some additional background is necessary to understand the history of this claim. The petitioner was originally arrested on these charges on about October 26, 2008, and appears to have been held on bond throughout the case. The court record appears to indicate that the petitioner, then represented by an Attorney Harrington, filed a document that purported to be a "pro se motion for speedy trial," which was received by the court on February 19, 2008. According to those same court records, however, Attorney Moscowitz did not first appear on behalf of the petitioner until March 3, 2008. On discussing this document with the parties on March 13, 2008, however, the court concluded that it was actually a letter directed to one of the judges where the petitioner simply mentions a desire for a speedy trial, as opposed to a formal speedy trial motion. More importantly, the court addressed both Attorney Moscowitz and the petitioner directly on the issue, and the petitioner, along with Attorney Moscowitz, agreed that no speedy trial request was being pursued at that time. Notwithstanding that he had just come into the case, and that he had tried to explain to the petitioner that he was waiting on authorization to incur expenses for an investigator, Attorney Moscowitz agreed to have the case marked over to begin jury selection on May 12, 2008. On April 18, however, the petitioner filed another self-represented motion for speedy trial with the court. At the time the motion was filed, both of the petitioner’s cases were still scheduled to begin jury selection on May 12, 2008, which is less than the thirty days required by General Statutes § 54-82m(2). Notwithstanding, the motions were addressed at a hearing on April 30, 2008. During that hearing, Attorney Moscowitz stated unequivocally that he was not adopting the petitioner’s motion. , Both cases were then continued to the already scheduled date of May 12, 2008, for jury selection. For reasons not made clear by any of the evidence presented before this Court, however, both cases were back on the docket on May 9, 2008, then continued on the "firm jury" docket for May 15th, and eventually over to May 19th. The clerk’s notations for May 19th under the child porn case indicate "scheduling conference held ... continue to 5-28-08 for jury selection." The docket sheet for this file simply indicates "too firm jury" without any date. Jury selection on the child porn case went May 28 through June 2, 2008, and the petitioner entered his guilty plea on June 3, 2008. Both cases eventually went to September 19, 2008, when the petitioner was sentenced on the child porn case.
Exhibit 1, Copy of Information CR06-355582 ("sexual assault case"), p. 4.
After addressing Attorney Moscowitz, the court directly addressed the petitioner on the issue:
Exhibit 7. Although both of his cases were already scheduled for jury selection on May 12th, it appears the petitioner was trying to direct which of his cases went to trial first by filing this motion.
Exhibit B, Information and Court Action Sheet, CR07-359677 ("child porn case") and Exhibit 1, Information and Court Action Sheet, CR06-355582 ("sexual assault case").
The petitioner was an unsentenced pretrial detainee, so General Statutes § 54-82m applied to his speedy trial request, which provided, in pertinent part: "... when such defendant is incarcerated in a correctional institution of this state pending such trial ..., the trial of such defendant shall commence within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later; and (2) if a defendant is not brought to trial within the time limit set forth in subdivision (1) of this section and a trial is not commenced within thirty days of a motion for a speedy trial made by the defendant at any time after such time limit has passed, the information or indictment shall be dismissed . Such rules shall include provisions to identify periods of delay caused by the action of the defendant, or the defendant’s inability to stand trial, to be excluded in computing the time limits set forth in subdivision (1) of this section." (Emphasis added.)
MR. MOSCOWITZ: That is correct, Your Honor. I never adopted any motions other than the motions that I have filed and I would indicate that I never filed a motion for speedy trial. I just came in on the case.
The petitioner may attempt to claim that the clerk notes indicate that the speedy trial motion was granted. (See Exhibit B, Information and Court Action Sheet, CR07-359677, p. 3 and Exhibit 1, Information and Court Action Sheet, CR06-355582, p. 5.) While the court does indicate on the record that it was granting the speedy trial request, to the extent that the parties had already agreed to begin jury selection on May 12, 2008, it is unclear that, legally, this can be viewed as the trial Court actually granting an actionable speedy trial request. It is the defendant’s right, and obligation, to place a claim for speedy trial before the Court, which trial counsel expressly said he was not doing. Given the decision to raise a claim for speedy trial is considered a tactical or scheduling decision that rested with Attorney Moscowitz; e.g., New York v. Hill, 528 U.S. 110, 114-15, 120 S.Ct. 659, 664, 145 L.Ed.2d 560 (2000); it is unclear that there is any law, nor has the petitioner pointed to any, that would allow the trial court to have unilaterally grant an actionable "speedy trial" request, at least not in the constitutional sense, as opposed to unilaterally exercising its broad general authority over the docket to order this matter to begin trial on a certain date. See W. Haven Lumber Co. v. Sentry Const. Corp., 117 Conn.App. 465, 469, 979 A.2d 591, cert. denied, 294 Conn . 919, 984 A.2d 70 (2009). A review of the entire transcript for April 30, 2008, leaves the impression that the latter— that the trial court was merely recognizing that a trial date within the 30-day window was already scheduled and ordering that date to remain firm— was the case here.
Exhibit B, Information and Court Action Sheet, CR07-359677, p. 3; Exhibit 1, Information and Court Action Sheet, CR06-355582, p. 5.
There was some a brief mention on the record during a hearing on April 30, 2008, that the State’s Attorney handling the petitioner’s matters was involved in another trial that was scheduled to conclude at or near the May 12th, but nothing direct about what caused the continuances was presented. See, Exhibit 37, Transcript of April 30, 2008, p. 3.
Exhibit B, Information and Court Action Sheet, CR07-359677, p. 3.
Exhibit 1, Information and Court Action Sheet, CR06-355582, p. 6.
In the present case, the petitioner has simply offered the bald claim that trial counsel failed to pursue his speedy trial rights, which lacks credibility in its own right given the trial record, but has failed to offer any actual evidence to show how he was prejudiced or that counsel’s decisions were unreasonable. While the constitutional right to a "speedy trial" is beyond citation, the decision of when, or whether, to enforce that right is considered a scheduling or tactical decision which rests exclusively with counsel. New York v. Hill, 528 U.S. 110, 114-15, 120 S.Ct. 659, 664, 145 L.Ed.2d 560 (2000) (counsel had the discretion, without client’s consent, to agree to delay in start of trial where defendant claimed agreement violated his right to speedy trial under the Interstate Act on Detainers); see also, Gonzalez v. United States, 553 U.S. 242, 249, 128 S.Ct. 1765, 1766, 170 L.Ed.2d 616 (2008) (citing to Hill affirmatively: "The Court [in Hill ] held, that the attorney’s statement without any showing of the client’s explicit consent, could waive the speedy trial right: ‘Scheduling matters are plainly among those for which agreement by counsel generally controls’ "). For certain fundamental rights, the defendant must personally make an informed waiver ... For other rights, however, [such as the right to speedy trial ] waiver may be effected by action of counsel ." (Emphasis added.) State v. Gore, 288 Conn. 770, 778-81, 955 A.2d 1 (2008) (citing, New York v. Hill, 528 U.S. 110, 114, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000)). "Scheduling matters are plainly among those for which agreement by counsel generally controls." Id., at 115, 120 S.Ct. 659. "Giving the attorney control of trial management matters is a practical necessity. The adversary process could not function effectively if every tactical decision required client approval ... The presentation of a criminal defense can be a mystifying process even for well-informed laypersons. This is one of the reasons for the right to counsel. Gonzalez v. United States, supra, 553 U.S. 249. There is no right to "hybrid" representation in Connecticut. State v. Gethers, 197 Conn. 369, 382-94, 497 A.2d 408 (1985). In other words, one cannot enjoy the benefit of counsel and simultaneously file motions as a self-represented party in the same case. Id. Absent a showing of ineffectiveness, Attorney Moscowitz’s decision on this issue will not be disturbed. Pelletier v. Warden, 32 Conn.App. 38, 46-47, 627 A.2d 1363, 1368, cert. denied, 227 Conn. 920, 920, 632 A.2d 694 (1993).
"The Supreme Court of the United States and [the Connecticut Supreme Court] have identified four factors which form the matrix of [a] defendant’s constitutional right to speedy adjudication: ‘[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant’ ... A balancing test is to be applied on a case by case basis. None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant’s right was violated." Pelletier v. Warden, supra, 32 Conn.App. 46-47. The analysis is commonly referred to as the Barker factors. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
The petitioner’s claim fails for several reasons. First, it is not even clear that the "motion" addressed on April 30, 2008, was of any legal effect, since Attorney Moscowitz never formally adopted it. (See Footnotes 11 and 12.) There is no right to hybrid representation in Connecticut; State v. Gethers, 197 Conn. 369, 382-94, 497 A.2d 408 (1985), so the petitioner was not free to file his own motion for speedy trial, or any other adversarial motion, while represented by counsel, and, absent a showing of ineffectiveness, it was within Attorney Moscowitz’s discretion, under the guise of trial strategy, to decide whether to adopt such a motion. Pelletier v. Warden, 32 Conn.App. 38, 46-47, 627 A.2d 1363, 1368 (1993). Attorney Moscowitz’s first appearance in this case was March 3rd, 2008, just five weeks before this motion was filed by the petitioner. Despite that, and despite the fact that he did not adopt the petitioner’s motion, he did not make any request to delay the May 12th trial dates that had already been scheduled. The petitioner has failed to present any evidence as to how this was constitutionally deficient performance or how he was prejudiced in any way. Pelletier v. Warden, supra, 32 Conn.App. 46-47. Further, and more importantly, even if the motion for speedy trial filed on April 18, 2008, was considered to have been formally granted by the Court, the petitioner stood before the Court with counsel on June 3, 2008, and acknowledged that it was being withdrawn. The claim fails. Hall v. Commissioner, supra, 124 Conn.App. 783.
MR. MOSCOWITZ: Your Honor, I did discuss this matter with my client and I’ve advised him to withdraw his motion for speedy trial, even— I’m not quite sure it’s a motion, but to withdraw the speedy trial issue, and he has agreed to do that.
The petitioner next claims that Attorney Moscowitz was ineffective for failing to have several witnesses— Gary Chambers, Phil Rogers, Shermaine Fullenwiley, and Officer Stephen Flanagan of the Waterbury Police Department— testify as defense witnesses. When a petitioner makes such a claim, it is his burden to present the supposed witnesses at the habeas trial to offer what he or she would have testified to if they had been called to testify at the trial, and to show that their testimony would have been relevant and admissible at that prior proceeding. 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). More importantly, in order to establish ineffectiveness, the petitioner would need to show that it was objectively unreasonable not to have called the witness and the probability that the testimony would have changed the outcome. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
While Gary Chambers, Phil Rogers, and Shermaine Fullenwiley all could have been available as witnesses at the time of trial, and testified before the habeas court, none of them offered much in the way of substance in regards to the specific allegations of misconduct against the petitioner. The substance of their testimony was character evidence— that the petitioner was generally a good person, and that he treated children well, at least from what they could see— but did not directly challenge any of the substantive evidence against him. They offered, generally, that they had never personally seen the petitioner mistreat the victims, or any other children, and that none of the victims had specifically complained to them about misconduct. None of them, however, appeared to have any direct information or inconsistent statements to offer about the actual instances the petitioner was charged with. Also, Attorney Moscowitz did consider them as witnesses, but expressed concern that offering character evidence might "open the door" to allowing the State to use the petitioner’s extensive criminal history on cross examination. "[A]n attorney’s line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel’s trial strategy." See Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010) (speaking about counsel’s decision to cross examine witnesses). As for Officer Flanagan, he was actually called to testify at the criminal trial, but invoked his privilege against self-incrimination. Since he was unavailable as a matter of law at the time of trial, Attorney Moscowitz cannot be said to have been deficient for failing to present him as a witness, nor can the testimony he offers today be given any consideration on this issue. See Nieves v. Commissioner of Correction, supra, 51 Conn.App. 622-24 (petitioner must show that witness was available, and that testimony was relevant and admissible at the time of trial). In the end, this claim fails because the petitioner has failed to show the probability that any of this testimony, even if admissible, would likely have impacted the outcome of his criminal trial. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783. The petitioner has also failed to show how Attorney Moscowitz was deficient. Id.
Exhibit 43, Transcript, July 20, 2009, p. 9.
Exhibit 43, Transcript, July 20, 2009, p. 31-36. The most efficient explanation is that Ofc. Flanagan’s daily foot beat included the street where the store owned by the petitioner was located, and where the inappropriate conduct against the victims is said to have occurred. By his own admission, Ofc. Flanagan got to know the petitioner personally and professionally, and stopped by the store regularly during his beat. One evening while off duty and on his way to a Police Explorer Group meeting, he stopped by the shop to check on a computer the petitioner was fixing. One of the children who ended up being a victim of the petitioner, "JH" asked to "try on" his handcuffs, to see what they felt like, and Ofc. Flanagan complied by putting them on the child. During the investigation into the petitioner’s conduct, this incident was revealed, and resulted in an internal investigation by the Waterbury Police Department. There was also information that Ofc. Flanagan may have admitted to seeing porn on the petitioner’s computer or the petitioner watching pornography. Since child pornography was located on the petitioner’s computer during the investigation, there was also apparently a question as to whether Ofc. Flanagan may have been aware of that, but failed to act. From all of this, appears there was, at least for a period of time, legitimate uncertainty about whether Ofc. Flanagan might face criminal prosecution. Based on the ongoing investigations, counsel advised him not to speak with anyone about the case and to assert his 5th Amendment Privilege when he was called to testify.
The petitioner’s next claim is that Attorney Moscowitz failed to meaningfully convey any plea offer to the petitioner by failing to properly advise him the elements of the offenses against him and the relative strengths and weaknesses of the State’s case. On April 30, 2008, there is a brief discussion on the record that the State had made an offer for a global disposition of both cases that would have resulted in a total effective sentence of 20 years, suspended after 10 years, followed by a 10-year period of probation, in exchange for the petitioner’s guilty pleas to one count of sexual assault first degree, one count of risk of injury, and one count of possession of child pornography. The petitioner, through counsel, rejected the offer and indicated he was only willing to enter a plea on the child pornography case. In a rejected plea case, the petitioner must establish that, but for counsel’s deficient advice, he would have accepted a plea offer that was more favorable than a later plea offer or trial disposition, and that the court would have accepted the terms. H.P.T. v. Commissioner of Correction, 310 Conn. 606, 616, 79 A.3d 54 (2013).
Exhibit 37, Transcript of April 30, 2008, p. 2.
In the present case, the petitioner has presented no evidence of a willingness to plead guilty to anything related to this. He has also failed to present any specific evidence as to how he was supposedly misadvised by counsel. It is quite evidence from reviewing the trial record that the petitioner was not interested in anything short of a trial on the sexual assault case, and his testimony and demeanor before this Court only supported that notion. Alternatively, because the petitioner failed to present any affirmative evidence in support of his claim, or as to the alleged misadvice counsel gave him, it is presumed to have been abandoned.
The petitioner next asserts that Attorney Moscowitz failed to adequately cross examine, impeach, or to otherwise challenge the testimony of the complaining witnesses. While Attorney Moscowitz was questioned generally about the evidence against the petitioner, the petitioner failed to present any direct evidence as to how his cross examination of these child victims could have, or should have been different, or what impeachment information could have been elicited. Counsel’s decision on how to cross examine a particular witness is entitled to great deference by the Court. State v. Clark, 170 Conn. 273, 287-88, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976). That is, "[a]n attorney’s line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel’s trial strategy." (Internal quotation marks omitted.) Velasco v. Commissioner of Correction, supra, 119 Conn.App. 172. This claim also fails for insufficient proof of prejudice or deficient performance. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.
The petitioner’s next two claims can be addressed together. He first claims that Attorney Moscowitz failed to file a motion in limine to challenge the introduction of two certain photographs by the State. The petitioner also claims that Attorney Moscowitz failed to properly object to the introduction of those same two photographs at trial, thereby failing to preserve his ability to challenge to them on appeal. There is no merit to these claims.
The two photos in question; Exhibits 1 and 2 at trial, (marked as Exhibits 13 and 14 in the present trial); are slightly different photographs of one of the minor victims, clothed, being held down on the floor on his stomach, and his wrists appear to be tied with something behind his back. Also visible in each photograph is the lower body and arms of a second person kneeling next to the victim, holding whatever is tied to the victim’s wrists with one hand, and pressing an elongated pink object into the rectum area of the victim’s jeans with the other. The petitioner admits that he is the individual kneeling beside the victim in the photograph, he does not deny that the pink object in his hand was a sex toy commonly referred to as a "dildo," and he does not deny that a "dildo" similar in description was known to be around his shop. He simply claims, unsupported by anything other than his own testimony, that the photographs were somehow doctored. The petitioner was simply not a credible witness, generally, and provided no credible evidence to impeach the authenticity of either photograph. Further, Attorney Moscowitz testified that he had the photographs examined by his own computer expert, who found no evidence of manipulation.
"All relevant evidence is admissible, except as otherwise provided by the constitution ... the General Statutes or the common law." Connecticut Code of Evidence § 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 § 4-1. Given the petitioner was charged with Risk of Injury to a Minor specifically related to the incident depicted in this photograph, and he admits to being the second person, the admissibility of this evidence is indisputable. Id. Under these circumstances, the petitioner has failed to present any plausible legal theory Attorney Moscowitz could have asserted before trial, or during evidence, to prevent the photographs from being admitted. Code of Evidence § 4-2. As such, the petitioner has failed to show prejudice or that counsel was in any way deficient. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783. Both claims fail. Id.
Exhibit 40, Transcript of July 13, 2009, p. 27 (reading information to the jury).
The petitioner’s final claims against Attorney Moscowitz are that he was ineffective for failing to assure that the trial court canvassed him before he testified in his own defense, and that he also failed to adequately inform the petitioner of the relevant risks of deciding to take the witness stand. The petitioner claimed in his testimony before this Court that he never discussed the possibility of testifying with Attorney Moscowitz. He said counsel came to see him in the court lockup during a break in the trial and told him the judge wished to see him, which he claims he thought was for the purpose of extending an offer, but the next thing he knew was that he was being announced as the next witness. Once again, the petitioner’s claim lacks credibility.
The petitioner’s testimony that he was wholly unaware that he was going to take the stand until he was led into the courtroom and heard his name called can’t be characterized as anything less than a blatant and intentional misrepresentation. On July 20, 2009, after the state rested its case and several defense motions were heard outside of the jury’s presence, the parties were all in court when Attorney Moscowitz advised the trial judge that the petitioner was going to be the next witness. The attorneys and the trial judge then reference a recent discussion they had in chambers about use of the petitioner’s prior convictions to impeach him on cross examination, after which they engage some additional argument about the prior convictions State will be allowed use. There is no question that Mr. Fullenwiley was present for this entire proceeding, because it begins with the judge directing his handcuffs to be removed. The petitioner, who regularly battled counsel with counsel on the record about trial management decisions, offered nothing during this exchange to indicate that he was at all surprised that he was going to testify.
Exhibit 43, Transcript of July 20, 2009, p. 74-76.
As to the claim that counsel should have had him canvassed by the court about his decision to testify in his own defense, there is no support in the law for such a claim. "Our Supreme Court has held that ... the trial court is under no affirmative duty to conduct a canvass to determine if a defendant’s waiver of the right to testify is knowing, voluntary, and intelligent ... [T]he substantive right to testify under federal constitutional law does not contain a corollary procedural requirement that a trial court canvass a defendant concerning his waiver of his right to testify unless the defendant affirmatively states that he wishes to testify or that he did not know he could testify." State v. Frazier, 181 Conn.App. 1, 36-37, 185 A.3d 621 (2018). In other words, unless there is some affirmative evidence put before the Court that a defendant does not understand the right to testify, there is no obligation to canvass. See Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir. 1987) ("To require the trial court to follow a special procedure, explicitly telling defendant about, and securing an explicit waiver of, a privilege to testify (whether administered within or outside the jury’s hearing), could inappropriately influence the defendant to waive his constitutional right not to testify, thus threatening the exercise of this other, converse, constitutionally explicit, and more fragile right"). "The accused must act affirmatively. While the due process clause of the Fifth Amendment may be understood to grant the accused the right to testify, the ‘if’ and ‘when’ of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney." State v. Paradise, 213 Conn. 388, 405, 567 A.2d 1221, 1230 (1990).
Even if there were a legal obligation to canvass before the petitioner took the stand, he has, once again, failed to present any specific evidence as to how he was prejudiced. Hall v. Commissioner of Correction, supra, 124 Conn.App. 783. He never indicated in his testimony before this court that he would have chosen not to testify at trial. Additionally, Attorney Moscowitz provided credible testimony that the petitioner was insistent on testifying from the outset of the representation, despite the fact that he had been advised about the difficult questions he was going to have to answer, such as the explaining the two photographs involving the "dildo." It is clear from the evidence before this Court, as well as the trial record, that the petitioner was intent testifying, and would have done so regardless of any canvass by the Court. The Court finds no deficiency in counsel’s representation, nor is there any proof of prejudice. As such, this claim fails. Id.
COUNT TWO— DENIAL OF RIGHT TO SPEEDY TRIAL BY TRIAL COURT
The petitioner failed to raise this claim in his direct appeal. However, since the respondent did not raise the special defense of procedural default; e.g., Hinds v. Commissioner of Correction, 321 Conn. 56, 71, 136 A.3d 596 (2016), the Court will review this claim on its merits.
The petitioner’s next claim is that "during his jury trial, the trial court abused its discretion and denied the petitioner’s motion to dismiss the charges as the time period for speedy trial well exceeded the required 30-day period," which the petitioner claims prevented him from a fair and impartial trial. By way of background, jury selection on this case began on June 3, 2009. Although Attorney Moscowitz had been appointed to represent the petitioner on March 3, 2008, the petitioner’s request to represent himself, was granted on October 21, 2008, and Attorney Moscowitz remained as standby counsel. Things remained that way, until the petitioner requested that Attorney Moscowitz be reappointed as counsel of record on June 3, 2009, the day jury selection began. On July 7, 2009, the petitioner filed a self-represented motion to dismiss alleging that his right to speedy trial had been violated. (Exhibit 10.) The motion referred back to the speedy trial request the petitioner had filed back in April 2008, and asserted that the trial had not commenced within the required thirty days of that motion being received. The matter was addressed in court on July 13, 2009, and Attorney Moscowitz agreed to adopt the motion and argued it on the petitioner’s behalf. The motion was denied by the trial court.
There is no right to hybrid representation in this state. State v. Gethers, 197 Conn. 369, 382-94, 497 A.2d 408 (1985). In other words, one who has counsel may not engage in simultaneous self-representation in the same case.
The petitioner’s claim fails for several reasons. First, as discussed in detail above, the speedy trial request asserted as the basis for the motion to dismiss had been withdrawn back on June 3, 2008, an act that was verbally acknowledged by the petitioner. (See Footnote 18.) Second, as cited by the trial court, even if the speedy trial request had not been withdrawn, the petitioner waived his right to a dismissal by not filing the motion before jury selection began. Practice Book § 43-41. "For the purpose of the speedy trial rules, commencement of trial means the commencement of the voir dire examination in jury cases ... By not filing a motion for a speedy trial [before the trial commenced], the defendant waived his statutory speedy trial claim." State v. Nicholson, 71 Conn.App. 585, 598, 803 A.2d 391 (2002), cert. denied, 261 Conn. 941, 808 A.2d 1134 (2002). Again, the petitioner has also failed to present any evidence of prejudice. Pelletier v. Warden, supra, 32 Conn.App. 46-47. Therefore, this claim fails.
COUNT THREE— INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL— CANDAL
The petitioner claims that Attorney Carlos Candal was ineffective in representing him on his direct appeal for two reasons; that he failed to raise the issue on appeal that the trial court denied his right to speedy trial, and that he failed to raise the issue that his motion to dismiss had been improperly denied. Given either of the findings above— that the petitioner had withdrawn any speedy trial request, or that he waived any claim for dismissal by failing to file a motion to dismiss until after jury selection had begun— there is no need for further discussion. With those findings, petitioner cannot show that there is any reasonable probability that Attorney Candal would have been successful if he had raised these claims, so he cannot show prejudice. Davis v. Commissioner of Correction, 117 Conn.App. 737, 740, 980 A.2d 933 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010). Therefore, the claims fail. Id.
COUNT FOUR— ACTUAL INNOCENCE
In his final claim, the petitioner asserts that he is actually innocent of the charges. Our Supreme Court has set forth the standard for a claim for habeas relief based on actual innocence as follows: "First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that, after considering all of that evidence and the inferences drawn therefrom ... no reasonable fact finder would find the petitioner guilty." Miller v. Commissioner of Correction, 242 Conn. 745, 791-92, 700 A.2d 1108 (1997); id., 800.
It is enough to say regarding this claim that, other than reiterations of his own trial testimony, his unsupported claims of evidence manipulation, and witnesses who could offer nothing more substantial than "he was a good guy," at least around them, the petitioner has not presented any affirmative evidence establishing that he did not commit any of these offenses by a "clear and convincing" standard or which could lead to the conclusion that, "after considering all of that evidence and the inferences drawn therefrom ... no reasonable fact finder would find the petitioner guilty." Miller v. Commissioner of Correction, supra, 242 Conn. 791-92. Nothing offered by the petitioner directly challenges the testimony provided by the victims in the slightest degree. The absence of evidence on this claim does not warrant any further analysis. It fails. Id.
III. Conclusion
Based on the foregoing, the petition for writ of habeas corpus is DENIED .
THE COURT: There is a letter in the clerk’s file that was apparently received on February 19th ... But it does mention a speedy trial, that he wanted a speedy trial, but I don’t believe it actually asked for a speedy trial. Is that correct sir?
THE ACCUSED: Not now.
THE COURT: Not in this letter. Okay. So the Court’s satisfied there’s been no speedy trial motion filed either by the defendant pro se or by either prior counsel or Mr. Moscowitz. The matter at this point is scheduled for jury selection on Monday, May 12th.Exhibit C, Transcript of March 13, 2008, p. 3, ln. 26— p. 4, ln. 18.
Exhibit 37, Transcript of April 30, 2008, p. 4, ln. 19-22.
THE COURT: ... And we still have a speedy trial issue, then, with respect to the sexual assault in the first degree. What counsel’s indicating is you’re going to, obviously— this is going to continue along with the— until September 5th when there— when there is sentencing on the other matter takes place. What counsel is indicating is that you wish at this point to withdraw your speedy trial with respect to the sexual assault in the first degree. Is that right? THE DEFENDANT: Yes. THE COURT: All right. And you’ve had a chance to discuss that with your attorney? THE DEFENDANT: Yeah. THE COURT: And you’re satisfied with his advice and counsel in that regard? THE DEFENDANT: Yes. Exhibit 38, Transcript of June 3, 2008, p. 11, ln. 20-p. 12, ln. 23.