Opinion
CV154006877
05-17-2019
Kacey Lewis #165480 v. Commissioner of Correction
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh) Newson, John M., J.
MEMORANDUM OF DECISION
Hon. John M. Newson, Judge
I. Procedural History
The petitioner was the defendant in a matter pending in the Judicial District of Waterbury. Following a jury trial, he was convicted of Kidnapping First Degree, Interfering with Police, Possession of Narcotics, and Assault Third Degree. The petitioner represented himself for purposes of trial. The jury could reasonably have found the following facts:
Early in the evening of July 20, 2009, the defendant and his girlfriend, Alana Thompson, drove around the streets of Waterbury trying to sell heroin. The defendant eventually parked the car he was driving, his sister’s 2008 Nissan Altima, near East Liberty Street and South Main Street, at which time he and Thompson separated. When they parted company, Thompson told the defendant that she was going to try to sell some of his heroin on her own. The two agreed that they would meet back later where he had parked the car.
When Thompson later returned to the car, the defendant was not there. She then walked away and encountered a friend of hers named Anna, who was driving around looking for drugs. Thompson got into Anna’s car and called the defendant, who reproached her for not being at their meeting place. Thompson and the defendant again agreed to meet where the defendant had parked his sister’s car, but Thompson stayed with Anna, who drove them to her home where they "got high." Approximately one hour later, Thompson got a ride to her aunt’s house on Willow Street. On the way, she listened to several voice mail messages from the defendant, in which he expressed his anger with her. Upon arriving at her aunt’s house, Thompson learned that the defendant had stopped by there earlier, looking for her.
After about five or ten minutes at her aunt’s house, Thompson left with an acquaintance, Amanda Blouin, who walked with her down Willow Street to the parking lot of the corner store, where they encountered a drug dealer known to them as "Nono." Nono, in turn, walked with them to Hillside Avenue, where they stood on the sidewalk, conversing with one another, until the defendant rapidly drove his sister’s car up onto the curb alongside them. The defendant quickly alighted from the car and approached Thompson, who was standing on the passenger side of the car, saying, "Bitch, come here." In response, Thompson moved away from him, going around the car in the other direction. At some point, the defendant caught up with Thompson and grabbed her by her shirt and hair, punched her in the face, and tried to pull her to the car. She broke free of the defendant’s grasp and tried to flee to a nearby store, but the defendant followed her and grabbed her again by her shirt and hair. Thompson attempted to resist the defendant’s efforts and dropped to the ground to try to prevent him from getting her to the car. The defendant, however, persisted in his efforts to subdue her, dragging her approximately ten feet back toward the car. When they got back to the car, the defendant maintained his grip of Thompson’s hair with one hand, "holding [her] down [so that she] couldn’t get up." Then he attempted three times to open the passenger side door of the car with his other hand to force Thompson inside. Each time he did so, Thompson kicked the door shut to prevent the defendant from forcing her into the car. Two plain clothes police officers driving a white sport utility vehicle arrived at the scene, and the defendant let go of Thompson.State v. Lewis, supra, 148 Conn.App. 511, 512-14, 84 A.3d 1238, cert. denied, 311 Conn. 940, 89 A.3d 349 (2014), certiorari denied, 135 S.Ct. 132, 190 L.Ed.2d 101, 83 U.S.L.W. 3187 (2014). On July 31, 2010, the trial court imposed a total effective sentence of 25 years, suspended after the service 15 years, 10 of which is minimum mandatory, followed by 5 years of probation. The petitioner, represented by Attorney Christopher Duby, appealed his convictions, which were affirmed. Id.
The petitioner commenced the present habeas corpus action on December 24, 2012, alleging various trial irregularities and claims of ineffectiveness against appellate counsel. The respondent filed a return generally denying the claims, and also raising several special defenses. The petitioner filed a reply to the return on February 22, 2017. The matter was tried before the Court on August 22, 2018, and February 29, 2019. Additional factual and procedural history will be provided as necessary within the opinion.
II. Law and Discussion
Special Defense of Procedural Default
The respondent has raised the special defense of procedural default to many of the petitioner’s claims. "[Connecticut has] adopted the procedural default standard [used by the federal courts] ... Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition ... [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance ... The cause and prejudice requirement is not jurisdictional in nature, but rather a prudential limitation on the right to raise constitutional claims in collateral proceedings ... The prudential considerations underlying the procedural default doctrine are principally intended to vindicate two concerns: federalism/comity and finality of judgments." Hinds v. Commissioner of Correction, 321 Conn. 56, 71, 136 A.3d 596 (2016).
In "Grounds I" and "Grounds II," the petitioner alleges certain defects in the rulings of the trial court, including that he was deprived of the opportunity for a fair trial because the trial Court denied his requests for the appointment of an investigator and an expert witness, that he was denied access to a writing instrument to take notes during the trial, and that that the trial court made several erroneous evidentiary rulings that interfered with his right to present a defense, such as prohibiting him from introducing the victim’s signed statement while cross examining her, and failing to hold a hearing when the petitioner alleged that Judicial Marshals had confiscated defense strategy materials.
Alleged interference with the right to a fair trial, to confront witnesses, and to present a defense are rights of constitutional magnitude that could have, and should have, been raised on direct appeal. E.g., State v. Holley, 327 Conn. 576, 593-94, 175 A.3d 514 (2018) ("It is fundamental that the defendant’s rights to confront the witnesses against him and to present a defense are guaranteed by the sixth amendment to the United States Constitution ..."). The petitioner, other than his own self-serving and conclusory testimony that appellate counsel was "ineffective," offered no evidence to explain the reasoning why these issues were not raised on appeal, or to establish that he was prejudiced in any way. Attorney Duby was actually present in court, but the petitioner chose not to call him as a witness before resting his case. While it is not necessary in every case that prior counsel be called as a witness in order to establish ineffectiveness, some evidence on the reasoning behind counsel’s decision-making process is usually required to overcome the presumption that decisions were based on sound legal strategy. "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." 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).
In "Ground III" the petitioner alleges that his right to self-representation was violated when he was excluded from a side-bar bench conference involving the State’s Attorney and his standby counsel during the trial, and that his appointed stand-by counsel interfered in his right to self-representation and to present his defense. He also alleges that defense strategy materials were allegedly confiscated by Judicial Marshals.
Interference with the right to self-representation is one of constitutional magnitude that should have been raised before the trial court and on appeal. E.g., State v. Webb, 238 Conn. 389, 427, 680 A.2d 147, 170 (1996) ("The right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused’s best possible defense. McKaskle v. Wiggins, [ 465 U.S. 168, 176-77, 104 S.Ct. 944, 949-50, 79 L.Ed.2d 122 (1984)] ... It is also consistent with the ideal of due process as an expression of fundamental fairness. To force a lawyer on a defendant can only lead him to believe that the law contrives against him"). Once again, the petitioner has failed to present any evidence, other than his own self-serving claims, to show the "cause" for failing to raise these issues on appeal. He has also failed to establish prejudice.
Several things should be noted from the trial record. First, reviewing the only direct reference to the petitioner requesting a writing instrument, the Court indicates the petitioner will have a writing instrument and will be able to take all the notes he wishes. (Exhibit C, Transcript of 11/18/2009, p. 2.) As to the petitioner’s claim that he was excluded from some side-bar conversation, while he admits that nothing can be found in the record that such a side bar ever occurred, or that he objected to such, he simply claims that it has been removed from the record. Finally, as to his claim that Marshals "confiscated" defense strategy materials, what actually occurred was that the petitioner’s family delivered documents to stand-by counsel in court intended for the petitioner. Since the petitioner was incarcerated, stand-by counsel, knowing that Marshals would have to examine anything in the petitioner’s possession for security reasons, expressed concern to the Court that the package of documents may contain attorney-client privileged materials. In turn, the Court asked the Marshals to consider screening the package for contraband through the metal detector, but without necessarily examining the contents of the documents inside. (Exhibit 9, Transcript of 12/7/2009, p. 15-17.) There is no evidence to support that they were "confiscated" as that term is commonly used.
The petitioner claims in "Ground IV" that the State violated his rights to due process and a fair trial by withholding certain photographs of the victim and by failing to make timely disclosure of the criminal records of several witnesses who testified at trial. Stated generally, due process requires the State to disclose exculpatory information to a defendant in a timely manner. E.g., State v. Pollitt, 199 Conn. 399, 414, 508 A.2d 1, 9 (1986) ("The unmistakable tone of Brady is that evidence required to be disclosed must be disclosed at a time when it can be used ... No denial of due process occurs if Brady material is disclosed ... in time for its effective use at trial. It must, nevertheless, be pointed out that "[a] delayed disclosure [of exculpatory material] by the prosecution is not per se reversible error.") (Citations omitted; internal quotation marks omitted.) Once again, however, the petitioner has failed to present any evidence to justify the "cause" for not raising these issues on appeal or to overcome the presumption that not pursuing this line on appeal was the result of a reasoned decision by appellate counsel. Boyd v. Commissioner of Correction, supra, 130 Conn.App. 297-98. In other words, he has failed to present any evidence supporting cause or prejudice. Hinds v. Commissioner of Correction, supra, 321 Conn. 71.
The petitioner alleges in "Ground V" that the trial judges failed to properly canvas him pursuant to the requirement of Practice Book § 44-3 on his decision to proceed as a self-represented person. Specifically, he claims that the judges who canvased him failed to ensure that he was aware that he faced a 10-year minimum prison sentence if convicted of the kidnapping first degree charge. Once again, the petitioner has raised a claim of constitutional magnitude; e.g., State v. Braswell, 318 Conn. 815, 828-29, 123 A.3d 835, 844-45 (2015) (waiver of right to counsel must be knowing and voluntary); that was not raised at trial or on direct appeal. Since he has also failed, once again, to present any evidence as to the reasons why this claim was not raised on appeal, or the harm he suffered, he has failed to present sufficient evidence of cause and prejudice.
Practice Book § 44-3.- Waiver of Right to Counsel
Kidnapping First Degree is a Class A felony, which carried a term of 10 to 25 years imprisonment. General Statutes § 53a-35a(1)(A)(4).
Therefore, this claim is procedurally defaulted. Hinds v. Commissioner of Correction, supra, 321 Conn. 71.
Also, as with several of the petitioner’s other claims, the record directly refutes his allegations. On August 26, 2009, the petitioner appeared before Judge Fasano and was thoroughly canvassed on his decision to proceed self-represented, which included a recitation of each charge he faced and the possible sentence. (Exhibit 2, Transcript of 8/26/2009.) He was then canvassed a second time by a different judge, Judge Schuman, at the beginning of jury voir dire, which also included the specific charges he faced and the possible sentences. (Exhibit 20, Transcript of 11/19/2009, p. 1-18.)
Although on slightly different factual grounds, the petitioner claims again in "Ground VI" that his right to self-representation was impeded, this time by the Court failing to provide him adequate time to prepare before proceeding to trial. Once again, without belaboring the issue, the petitioner has failed to present any evidence as to the "cause" for his failure to raise this claim on appeal. As such, it is procedurally defaulted. Id.
Therefore, Grounds I, II, III, IV, V, and VI are all dismissed on grounds of procedural default.
Ineffective Assistance of Appellate Counsel
The petitioner alleges in "Ground VII" that Attorney Christopher Duby provided ineffective assistance in representing him on direct appeal, specifically incorporating his failure to raise the issues discussed above in "Ground I" through "Ground VI." This claim fails for lack of evidence.
As discussed above, the petitioner was the only witness to testify in this matter. Although Attorney Duby was present and in the courtroom on the second day of trial, the petitioner chose not to call him as a witness. "[W]hen a petitioner is claiming ineffective assistance of appellate counsel, he must establish that there is a reasonable probability that but for appellate counsel’s error, the [he] would have prevailed in his direct appeal." (Internal quotation marks omitted.) 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). It is the petitioner’s obligation to present witnesses and evidence in support of his claims. 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). "It is well established that when analyzing a claim of ineffective assistance, counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment ... As with any refutable presumption, the petitioner may rebut the presumption on adequate proof of sufficient facts indicating a less than competent performance by counsel." (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction, 83 Conn.App. 543, 551, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004).
The only evidence offered on appellate counsel’s alleged deficiencies were the petitioner’s self-serving conclusions that the issues should have been raised on appeal. There was no evidence offered on the strategic basis for counsel’s decisions or on the probability that any of the issues alleged by the petitioner would have changed the outcome of the appeal. See, Davis v. Commissioner of Correction, supra, 117 Conn.App. 740. Therefore, "Ground VII" fails, because the petitioner has not established that appellate counsel’s performance was deficient, or that he suffered any prejudice as a result of that representation. Id.
III. Conclusion
Based on the foregoing, Grounds I, II, III, IV, V, and VI are procedurally defaulted and are DISMISSED. The remaining Ground VII of the petition is DENIED.
A defendant shall be permitted to waive the right to counsel and shall be permitted to represent himself or herself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
(1) Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled;
(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself;
(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
(4) Has been made aware of the dangers and disadvantages of self-representation.