Opinion
No. TSR CV07-4001946
April 26, 2011
Memorandum of Decision
The principal issue in this habeas corpus petition is whether criminal trial counsel has any obligation, in an appropriate case, to file or advise the client to file a petition for a new trial.
I
The opinion of the Supreme Court set forth the facts that the jury could reasonably have found at trial. "On or about June 3, 2003, the victim, an eight year old girl, rode around the block for about ten minutes in the defendant's car, starting in front of her home. No one other than the defendant and the victim was present in the car at the time. After she entered the car on the front passenger side, she moved closer to where the defendant was sitting because she wanted to drive. She then positioned herself so that she was standing in front of the defendant with her hands on the wheel while the defendant was sitting on the driver's seat operating the pedals. She was wearing blue shorts, a blue shirt and underwear at the time. While she was standing in front of the defendant, the victim felt the defendant's `private' touch her `behind.' She also recalled that the defendant put his `private' inside her underwear while she was standing and that, when she sat down, she felt it `in the same place [as] before.' She did not, however, see the defendant's `private,' he did not touch any other part of her body, and his `private' did not move while it was touching her. When she returned from the ride, she and the defendant said goodbye, and she exited the car on the front passenger side. Upon leaving the car, she saw that the zipper on the defendant's pants was down.
"After the defendant dropped the victim off at her house, she went upstairs to the bathroom, put her clothes in the hamper, which contained other dirty clothes, and took a shower. She noticed at the time that her shorts felt wet. Although her mother and a friend were inside the house when she returned, the victim did not tell them what had happened because she thought that her mother would yell at her for going on the ride. When her mother asked her if anything had happened, she said `no.'
"The victim wanted to tell her mother about what had happened and felt bad that she had not done so. She became quiet after the incident, which was not in her nature. A few days later, however, she told her mother, her older brother and his girlfriend about the incident, and the family informed the police." State v. Gilberto L., 292 Conn. 226, 230-31, 972 A.2d 205 (2005).
Following an investigation, the petitioner was arrested and charged with attempt to commit sexual assault in the first degree and two counts of risk of injury to a child. The petitioner retained attorney Mario DeMarco, who represented the petitioner throughout the trial court proceedings. The jury acquitted on the attempted sexual assault count and convicted on both risk of injury counts. The court, Hauser, J., sentenced the petitioner to a total effective sentence of ten years incarceration, execution suspended after eight years, and ten years probation. The Supreme Court affirmed the conviction. Id.
The petitioner has now filed a petition for a writ of habeas corpus.
II
The petitioner initially claims that DeMarco rendered ineffective assistance. "To determine whether the petitioner has demonstrated that counsel's performance was ineffective, we apply the two part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Claims of ineffective assistance during a criminal proceeding must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance . . ." (Internal quotation marks omitted.) Jarrett v. Commissioner of Correction, 108 Conn.App. 59, 70, 947 A.2d 395, cert. denied, 288 Conn. 910, 953 A.2d 653 (2008). "It is well settled that in order to prevail on a claim of ineffective assistance of counsel, the petitioner must prove both prongs of the Strickland test. A reviewing court [therefore] can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Lacks v. Commissioner of Correction, 87 Conn.App. 225, 231, 866 A.2d 660, cert. denied, 273 Conn. 922, 871 A.2d 1027 (2005).
A
The petitioner's first specification of ineffective assistance is that DeMarco failed to conduct a proper investigation of the case prior to trial. "Because a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction . . . Regardless, counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it." (Internal quotation marks omitted; citations omitted.) Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721, 789 A.2d 1046 (2002). On habeas, the petitioner has the burden to show "what benefit additional investigation would have revealed." Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001).
The petitioner has failed to meet his burden. The petitioner initially alleges that DeMarco should have investigated the use of experts at trial. The petitioner, however, failed to call any experts at the habeas trial, and thus made no showing of what additional benefit investigation into expert testimony would have produced.
The petitioner also claims that DeMarco should have spoken to the victim and her mother prior to trial. It is not clear that the victim and her mother would have agreed to do so at the time. In any case, the only evidence that the petitioner produced at the habeas hearing that additional investigation might have revealed was the mother's statement that, when she saw the victim in the petitioner's car in front of her house as they drove off around the block, the victim was in the passenger seat. The victim, however, had already testified at the criminal trial that she entered the passenger side of the car and then some time thereafter moved over to the driver's side. (Exhibit 6, pp. 22-24.) The mother's additional testimony is thus fully consistent with, and adds nothing to, the evidence that came out at the criminal trial. Therefore, the petitioner has failed to show any benefit from additional investigation.
B
The petitioner's principal specification of ineffective assistance is that DeMarco failed to pursue a petition for a new trial based on the victim's recantation shortly after the verdict. The transcripts reveal that, after the verdict, DeMarco filed a motion for judgment of acquittal and a second motion, which was entitled either a motion for new trial or a petition for new trial. On December 6, 2005, the first day of hearings on these motions, DeMarco represented that he had two witnesses to present. The trial court and counsel then had a colloquy in which the consensus was that the petitioner was proceeding on the motion for a judgment of acquittal because the motion/petition for a new trial could not be heard until after sentencing. (Exhibit A, p. 2.)
On the first day of hearings on these motions, the trial court referred to the second motion as a "motion for the petition for a new trial . . ." (Exhibit A, p. 2.) At sentencing, when the court ruled on the motions, it initially referred to the second motion as a "motion for a new trial." (Exhibit B, p. 3.) As will be discussed, the court also stated that the defendant had already filed "a petition for a new trial." (Exhibit B, p. 4.)
DeMarco then presented testimony that day and on January 11, 2006. On the latter, the court continued to assume that the hearings concerned a motion for judgment of acquittal. (Exhibit C, pp. 148-49.) On January 19, 2006, the day of sentencing, the trial court ruled on the pending motions. The court, now apparently deeming the hearings to have addressed the motion/petition for a new trial, initially denied that motion. The court stated that a motion for a new trial "concerns itself with error that must have occurred during the trial. The hearing is to determine whether the Court in the course of the trial committed error thus depriving the defendant of a fair trial. It thus is limited to trial error appearing on the record. This is not the claim of the defendant. The defendant offers newly discovered evidence that he says entitles him to a new trial." (Exhibit B, pp. 3-4.)
Continuing, the court observed: "Newly discovered evidence is properly presented in a petition for a new trial which the defendant has indicated he has already filed. See motion for continuance, I believe also dated October 5th, 2005. However, a petition for a new trial is treated as a civil case. Beyond that a petition for a new trial cannot be heard until after sentencing in the criminal trial which has not yet taken place in this case. This leaves us with a motion for judgment of acquittal after verdict." (Exhibit B, p. 4.) The court then denied the motion for judgment of acquittal on the ground that there was sufficient evidence of guilt produced at trial. (Exhibit B, pp. 4-5.)
On appeal, the petitioner properly did not challenge the trial court's ruling that, regardless of whether the hearings addressed a motion for a new trial or a motion for judgment of acquittal, neither was a proper remedy for a claim of newly discovered evidence and that, instead, a petition for a new trial was the appropriate remedy. As the Appellate Court explained in State v. Gonzalez, 106 Conn.App. 238, 260, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008): "the trial court lack[s] the authority to consider [a] defendant's [postverdict] motion for a new trial on the basis of newly discovered evidence. It is well established that to obtain a new trial on the ground of newly discovered evidence, a defendant must bring a petition under Practice Book § 42-55 . . . Practice Book § 42-55 provides that [a] request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with General Statutes § 52-270 . . ." (Emphasis omitted; internal quotation marks omitted.) A motion for judgment of acquittal generally addresses the issue of whether "the evidence [at trial] would not reasonably permit a finding of guilty beyond a reasonable doubt." Practice Book § 42-50.
The petitioner now contends that DeMarco's failure to file a petition for a new trial was ineffective assistance. Initially, however, it is not clear that DeMarco did not file a petition for a new trial. As stated, the trial court observed that newly discovered evidence is "properly presented in a petition for a new trial which the defendant has indicated he has already filed." Unfortunately, the parties have failed to introduce the actual pleadings in the case or any evidence of what became of the petition for a new trial to which the trial court referred.
Assuming that the trial court was confused and that DeMarco had not filed a petition for a new trial, the question becomes whether he was obligated to do so. Initially, there is no evidence in this case that DeMarco was obligated to file a petition for a new trial as a result of any provision in his retainer agreement with the petitioner. Indeed, the petitioner failed to introduce the retainer agreement at trial.
The petitioner presents no other authority supporting the proposition that criminal defense counsel has an obligation to file a petition for a new trial, even when the evidence might justify it, and the court knows of no such authority. "A petition for a new trial properly is instituted by a writ and complaint served on the adverse party; although such an action is collateral to the action in which a new trial is sought, it is by its nature a distinct proceeding . . ." (Internal quotation marks omitted.) State v. Gonzalez, 106 Conn.App. 238, 260-61, 941 A.2d 989, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008). Given that a petition for a new trial is a separate civil proceeding, criminal defense counsel is under no more obligation to file such a proceeding than he is to file any other separate, albeit related, civil proceeding (even if the evidence might justify it) such as a habeas corpus petition or a civil suit against the police or victim. The court thus concludes that, absent a provision in the retainer agreement, criminal defense counsel has no duty to file a petition for a new trial on behalf of his client.
That conclusion does not mean, however, that criminal defense counsel has no duty whatsoever in this area. The situation seems analogous to counsel's role in assisting his client with an appeal. Counsel might not have an obligation to represent the client on appeal, but he may have an obligation at least to advise the client to file the appeal. In guilty plea cases, for example, counsel's advice is particularly important because the client may not realize that he has any right of appeal. The court has defined counsel's role in this situation as follows: "[t]here is no constitutional mandate that to provide reasonably competent assistance, defense counsel always must inform a criminal defendant of the right to appeal from the judgment rendered after the acceptance of a guilty plea . . . Instead, counsel has a constitutional obligation to advise a defendant of appeal rights when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. Id." (Internal quotation marks omitted.) King v. Commissioner of Correction, 73 Conn.App. 600, 604-05, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003). Thus, where the assistance of trained legal counsel is particularly necessary because of the complexities of the law, criminal defense counsel must at least provide proper advice to his client concerning any remedies he may have in addition to his criminal defense at trial. That rule would include advising the client of the remedy of a petition for a new trial.
In the present case, however, the petitioner's testimony failed to address what advice he received from DeMarco regarding a petition for a new trial. Neither side called DeMarco as a witness. Accordingly, the petitioner's claim must fail for lack of proof.
III
The petitioner also claims actual innocence. "[T]he proper standard for evaluating a freestanding claim of actual innocence . . . is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty of the crime." (Internal quotation marks omitted.) Sargent v. Commissioner of Correction, 121 Conn.App. 725, 734, 997 A.2d 609, cert. denied, 298 Conn. 903, 3 A.3d 71 (2010). In addition, under binding Appellate Court case law, "[a] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered . . . This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Internal quotation marks omitted.) Id. at 734-35.
The standard for prevailing on a claim of actual innocence is higher than for a petition for a new trial. The primary test in a petition for a new trial is whether the petitioner has demonstrated that "the evidence offered in support thereof: (1) is newly discovered such that it could not have been discovered previously despite the exercise of due diligence; (2) would be material to the issues on a new trial; (3) is not cumulative; and (4) is likely to produce a different result in the event of a new trial." Skakel v. State, 295 Conn. 447, 466-67, 991 A.2d 414 (2010). Stated differently, in a petition for a new trial the petitioner need not prove by clear and convincing evidence that he is actually innocent or that no reasonable fact finder would find the petitioner guilty of the crime. Cf. Sargent v. Commissioner of Correction, supra, 734. The justification for the lower threshold in a petition for a new trial may be that there is a three-year statute of limitation for a petition for a new trial, whereas there is currently no statute of limitations for habeas petitions. See Summerville v. Warden, 229 Conn. 397, 426-29, 641 A.2d 1356 (1994.)
The newly discovered evidence offered by the petitioner is the victim's recantation shortly after the criminal trial concluded. At the hearings on the posttrial motions, the victim testified that the petitioner did not touch her in the car and that it was just a ride around the block. (Exhibit A, pp. 54-62.) She also acknowledged writing a letter to the trial judge in which she stated: "I've done something bad, I lied about Gilberto Lopez touching me and letting me drive." (Exhibit A, pp. 12, 60.)
The petitioner attempted to introduce the letter at the habeas hearing. The respondent objected on hearsay grounds and the court questioned the petitioner about the availability of any hearsay exception. The petitioner did not attempt to introduce the letter as a Whalen statement, even though it was arguably contrary to her testimony at the habeas trial that she did not remember telling anyone that the petitioner did nothing to her. See Conn. Code Evi. § 8-5(1). The petitioner next suggested that the letter might be admissible for nonhearsay purposes as relevant to whether counsel should have filed a petition for a new trial. He then did not pursue the matter and the court never formally ruled on the admission of the letter. In any case, the letter was unnecessary to show trial counsel's evidentiary basis for a petition for a new trial because there is no dispute that there was a sufficient evidentiary basis. The dispute instead is whether criminal defense counsel has an obligation to file a separate civil action. Further, even if the court had admitted the letter for nonhearsay purposes, such a ruling would not have made the letter available for the truth of the matter to show actual innocence. Finally, the victim testified about the letter at the posttrial hearing, and so, as stated above, the court is fully aware of the fact that it contains her recantation.
Our law views such recantations with skepticism. See Channer v. State, 54 Conn.App. 620, 629, 738 A.2d 202, cert. denied, 251 Conn. 910, 739 A.2d 1247 (1999). Further, after writing the letter, the victim told a state's inspector that it was a lie. (Exhibit C, pp. 115, 118.) At the habeas hearing, the victim did not remember telling anyone that the petitioner did nothing to her. Thus, essentially, the victim has recanted her recantation. Her testimony did not at all show that the petitioner is actually innocent.
The petitioner also called Lucy Goodman, the victim's mother, in support of the actual innocence claim. Goodman had testified at the posttrial hearing that, after the criminal trial, she heard the victim tell the petitioner's girlfriend, a probation officer, and a DCF worker that the petitioner did not do anything to her. Based on that information, Goodman also wrote a letter to the trial judge. (Exhibit A, pp. 6-9, 14-16, 47-48.) At the habeas trial, however, Goodman admitted that she had no first hand knowledge of whether the incident occurred and that she did not know whether the petitioner was innocent. Thus Goodman's testimony does not contribute to the actual innocence claim.
Finally, there is physical evidence that supports the finding of petitioner's guilt. The investigation revealed the presence of a small semen stain inside the crotch of the victim's shorts. DNA testing established that the petitioner was the source of the semen. State v. Gilberto L., supra, 292 Conn. 259. It is true that the examiner also found that the petitioner's girlfriend was "included as a contributor" to the skin cells found in the semen stain. (Exhibit 7, pp. 42-43.) The petitioner argued in his criminal case that the stain could be explained by evidence that he and his girlfriend had sexual intercourse on the bed where the victim slept, thus resulting in a transfer of the semen stain to the victim's shorts, perhaps in the hamper. (Exhibit 8, p. 38.) The Supreme Court responded as follows: "[t]he defendant's argument that the semen stain could have been transferred to the victim's shorts through contact with other dirty clothes in the room in which the victim slept was severely undermined by his girlfriend's testimony that she was not certain if she and the defendant had had sexual intercourse in the house earlier that day or on another day." State v. Gilberto L., supra, 292 Conn. 261-62.
Given the physical evidence supporting the petitioner's guilt, and the limited value of the recanted or withdrawn recantation, the court cannot say that the evidence clearly and convincing establishes that the petitioner is actually innocent. Similarly, the petitioner has not established that "no reasonable fact finder would find the petitioner guilty of the crime." (Internal quotation marks omitted.) Sargent v. Commissioner of Correction, supra, 121 Conn.App. 734. Accordingly, the court rejects the claim of actual innocence.
IV
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.
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