Opinion
No. CV 06 4001316
September 13, 2010
MEMORANDUM OF DECISION
The petitioner, Robert Smith, alleges in his petition for a writ of habeas corpus, filed on September 26, 2006, and amended on July 23, 2009, that he was denied the effective assistance of trial counsel, appellate counsel, and habeas counsel, and that there was an impermissible and substantial variance between the allegations in the charging documents and the proof offered by the state at trial, all in violation of the fifth, sixth, and fourteenth amendments to the United States Constitution and of article first, § 8, of the Constitution of Connecticut. He also alleges actual innocence. The petitioner is requesting that this court reverse his convictions and order a new trial. For the reasons stated more fully below, the petition for a writ of habeas corpus is denied.
In March 2003, the petitioner filed a habeas corpus petition, which was denied after a trial on the merits. See Smith v. Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. CV 03 0824589 (March 3, 2005, Fuger, J.).
The parties appeared before this Court on October 14, 2009, and again on January 13, 2010, for a trial on the merits. On the first date of trial, the respondent's motion to dismiss all five counts of the petition was heard, and after full argument, the Court dismissed count one. Thereafter, the petitioner proceeded to trial on counts two, three, four and five. The Court heard testimony from the petitioner and Attorney Herman Woodward, his trial counsel. There was no documentary evidence proffered by the petitioner. The respondent entered as exhibits, inter alia, the long form information listing the charges against the petitioner, the criminal trial transcripts, the transcripts from the petitioner's prior habeas trial, the petitioner's amended petition in the prior habeas matter, dated June 30, 2004 and the petitioner's appellate brief from his direct appeal. The petitioner and the respondent filed posttrial briefs on May 17 and June 18, 2010, respectively. Having reviewed all of the testimony, documentary evidence and briefs, the Court makes the following findings of fact.
FINDINGS OF FACT CT Page 17964
1. The petitioner was charged in the judicial district of Hartford, under docket number CR00-0114755, with kidnapping in the second degree in violation of General Statutes § 53a-94, conspiracy to commit kidnapping in the second degree in violation of General Statutes §§ 53a-94 and 53a-48, larceny in the first degree in violation of General Statutes § 53a-122(a)(3), conspiracy to commit larceny in the first degree in violation of General Statures §§ 53a-122(a)(3) and § 53a-48, robbery in the first degree in violation of General Statutes § 53a-134(a)(4) and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134(a)(4) and § 53a-48.2. On July 11, 2000, after a jury trial, the petitioner was convicted of conspiracy to commit kidnapping in the second degree and conspiracy to commit larceny in the first degree. The jury found him not guilty on each of the remaining four counts.
Respondent's Exh. B, July 11, 2000, pp. 200-03.
3. On September 20, 2000, the court, Mullarkey, J., sentenced the petitioner to "[t]welve years to serve on each count, followed by a period of six years of special parole; total [effective] . . . sentence is eighteen years in the custody of the Commissioner of Corrections of which the first twelve are to be served in the regular correctional facility, the remainder as special parole . . ."
Respondent's Exh. B, September 20, 2000, pp. 13-14. "During the pendency of [his direct] appeal, the state filed a motion to correct the illegal sentence. The trial court granted the motion and vacated the [petitioner's] sentence for conspiracy to commit larceny in the first degree. The [petitioner's] original sentence for conspiracy to commit kidnapping in the second degree remained in effect." State v. Smith, 70 Conn.App. 393, 395 n. 1, 797 A.2d 1990, cert. denied, 261 Conn. 924, 806 A.2d 1063 (2002).
4. The petitioner appealed from the judgment of conviction and was represented by Attorney Arnold Amore on the appeal. The conviction was unanimously affirmed on appeal. See State v. Smith, 70 Conn.App. 393, 797 A.2d 1990, cert. denied, 261 Conn. 924, 806 A.2d 1063 (2002).
5. As stated by the Appellate Court, the jury reasonably could have found the following facts regarding the underlying offenses. "On January 12, 2000, Edward Lepak was working as a salesman at Gale Toyota in Enfield. At approximately 5 p.m., two men entered the showroom and requested to test drive a 1997, black Lexus ES300. Lepak brought the two men to the car and the defendant got into the driver's seat, Lepak sat in the front passenger seat and the other man sat in the rear passenger seat directly behind Lepak. After a few minutes of driving, the defendant stated that he wanted to drive the car on the highway. The car was low on fuel so they returned to the dealership so that Lepak could get a gasoline voucher. Lepak asked the men for an operator's license and the man in the back seat handed Lepak his. Lepak proceeded inside the dealership, made a copy of the license and gave it to his sales manager, John Duran. At that point, Lepak told Duran that he felt uncomfortable taking the two men out on a test drive. Lepak obtained a $10 gasoline voucher and returned to the car.
6. "After putting gasoline into the vehicle, the two men and Lepak took the car onto the highway. The defendant moved into the left lane of the highway and accelerated to approximately seventy to eighty miles per hour. When Lepak told the defendant to slow down and move back to the right lane in order to exit the highway, both men began screaming at him. The men told Lepak that they were taking the car and instructed him to put his hands on his knees and his head down or they would kill him. The man in the backseat grabbed Lepak about the face and jerked his head back, causing his glasses to fall off. Lepak then felt what he thought was a gun pressed against the back of his head and he was instructed to empty his pockets and place the contents in the glove compartment. Lepak placed cash, an identification card and credit cards into the glove compartment.
7. "When the defendant began to decelerate, Lepak grabbed the car door in an attempt to jump from the car. The defendant told Lepak that the other man would shoot him in the head if he tried to escape again. Eventually, the men allowed Lepak to exit the vehicle and they left him on the side of the southbound lane of Interstate 91. Lepak walked to a truck depot and telephoned his employer and the police.
8. "On January 14, 2000, police located the Lexus parked in front of 160 Marshall Street in Hartford and impounded the vehicle. Because the defendant had been residing at that address since September 1999, the police added his photograph to a photographic array to be viewed by Lepak. On January 15, 2000, detectives showed Lepak the photographic array and he identified the defendant's picture as the driver of the Lexus. Based on that identification, an arrest warrant was prepared and executed for the defendant." State v. Smith, supra, 70 Conn.App. 395-96.
9. The Court will discuss additional facts as needed.
DISCUSSION I. Ineffective Assistance of Counsel CT Page 17966
In counts two, four and five of his amended petition, the petitioner raises claims of ineffective assistance of counsel. "A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong." (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). To prove deficient performance, the petitioner must show that defense counsel's representation "fell below an objective standard of reasonableness . . ." Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002). "To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Small v. Commissioner of Correction, supra, 713. "Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong . . . Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim." (Internal quotation marks omitted.) Kearney v. Commissioner of Correction, 113 Conn.App. 223, 228-29, 965 A.2d 608 (2009).The petitioner first claims, in count two of his amended petition, that his trial counsel rendered ineffective assistance by failing to (1) file a motion for a bill of particulars, (2) object to the testimony of Jessica Vasquez as irrelevant, (3) object to remarks made by the prosecutor in his closing argument and (4) seek either a mistrial or a continuance after the state presented a "new" theory of liability at the end of its case-in-chief. Behind all these allegations is the petitioner's contention that the state offered proof, the testimony of Vasquez, that impermissibly varied from the allegations in the long form information.
Vasquez, the petitioner's former girlfriend, testified at the criminal trial that in early January 2000 she was incarcerated in Arizona on drug charges for three weeks. Upon being released, she called the petitioner to tell him that she had been released and had no money to get back home. He met her in Arizona. While they were at a motel in Arizona, the petitioner called Hartford. Vasquez overheard him say, "[T]ell them stupid guys to get the car from the front of my house." After he hung up, she asked him what was going on. He told her "that he had took [sic] his friends up to Enfield to the dealership, his friends then got out of the car at the dealership to ask the salesman if he [sic] could test drive a car. When they got in the car to test drive the car, they wanted the sales person to give them the car. The salesman rejected and they put him — they took his wallet and put the gun to his head and kicked him out on the highway." The following morning the petitioner received a phone call, during which Vasquez heard him say something about a person named Tray, who has a mustache and thick southern accent. Based on this, she believed that Tray may have been involved in the carjacking.
Respondent's Exh. B, July 7, 2000, pp. 96-100.
Exh. B, July 7, 2000, p. 100.
Respondent's Exh. B, July 7, 2000, pp. 106-07, 129-31.
Prior to presenting the testimony of Vasquez, the state presented testimony from Edwin Lepak, the victim, several police officers and Christopher Grice, a criminalist employed by the state police forensic science laboratory. Lepak identified the petitioner as the driver who carjacked the Lexus. Additionally, he testified that the two carjackers told him that they were dropped off by someone. He described the driver as over six feet tall with a goatee and accent. Lepak also testified that the driver could have had gold teeth although he could not swear either that he did or that he did not. The police officers testified that they found the stolen Lexus in front of the petitioner's apartment building and that they only located one partial fingerprint in the Lexus. Grice testified that the fingerprint could have been left by anyone, as it was unidentifiable. The petitioner did not present any evidence in his case-in-chief at his criminal trial.
Respondent's Exh. B, July 6, 2000, pp. 20, 31.
Respondent's Exh. B, July 6, 2000, pp. 14, 31-34. The petitioner has some permanent gold teeth.
Respondent's Exh. B, July 6, 2000, pp. 46-81.
Respondent's Exh. B, July 7, 2000, pp. 88-89.
As noted supra, the state charged the petitioner with kidnapping in the second degree, conspiracy to commit kidnapping in the second degree, larceny in the first degree, conspiracy to commit larceny in the first degree, robbery in the first degree and conspiracy to commit robbery in the first degree. The petitioner asserts that the state's theory of liability under the conspiracy charges was that his actions as the carjacker who drove the Lexus evidenced an agreement to commit kidnapping, larceny and robbery and constituted an overt act in furtherance of such agreement. The long form information, however, does not detail such a factual basis or any factual basis for the conspiracy charges; it merely states for each conspiracy charge that "on or about the 12th day of January 2000 . . . with intent that conduct constituting the crime of [kidnapping or larceny or robbery] be performed, [the petitioner] agreed with one or more persons to engage in or cause the performance of such conduct, and any one of them committed an overt act in pursuance of such conspiracy . . ." At trial, the state presented evidence that the petitioner and another person carjacked the Lexus. It also presented evidence that the petitioner knowingly dropped the carjackers off at the dealership. That is, the state presented two alternative ways in which the crime of conspiracy to commit kidnapping, larceny and robbery may have been committed by the petitioner.
Respondent's Exh. C.
Contrary to the petitioner's contention, the state did not present proof varying materially from the allegations in the long form information. "[G]enerally speaking, the state is limited to proving that the defendant has committed the offense in substantially the manner described in the information . . . Our case law makes clear that the requirement that the state be limited to proving an offense in substantially the manner described in the information is meant to assure that the defendant is provided with sufficient notice of the crimes against which he must defend." (Internal quotation marks omitted.) State v. Atkins, 118 Conn.App. 520, 530-31, 984 A.2d 1088 (2009), cert. denied, 295 Conn. 906, 989 A.2d 119 (2010). In the petitioner's case, the long form information did not specify the factual basis for the conspiracy charges. Accordingly, the state was not limited in its proof of these charges. This case is not akin to State v. Steve, 208 Conn. 38, 44, 544 A.2d 1179 (1988), where the defendant was convicted as an accomplice after he offered evidence of such in reliance on the bill of particulars in which he was only charged as a principal.
Moreover, even though both the petitioner and Attorney Woodward testified at the habeas trial that they believed the state was going to try to prove the conspiracy charges by proving the petitioner was the carjacker who drove the Lexus, they both admitted that before the trial even commenced they were aware of the statement made by Vasquez and that there was a possibility she would testify in accordance with it at the trial. Attorney Woodward also testified that if he was surprised by the state's theory he would have sought a continuance. He explained that he did not seek a continuance after Vasquez testified because he did not know what else he could develop. He effectively tried to discredit her testimony during his cross-examination of her. He questioned her about her use of aliases, her sale of drugs, her recent heated encounter with the petitioner's wife, who came to her apartment to retrieve the petitioner's things, and her recent break up with the petitioner, who decided to break things off in order to go back to his wife. Both the break up and the encounter with the petitioner's wife occurred right before Vasquez gave her statement to the police.
Respondent's Exh. B, July 7, 2000, pp. 101-06.
In light of the above, the petitioner has failed to establish that Attorney Woodward rendered ineffective assistance as alleged in count two of the amended petition. Neither deficient performance nor any resulting prejudice has been shown. The testimony of Vasquez was relevant to the petitioner's case, as it demonstrated that the petitioner had knowledge of the carjacking and that he played some role in it. Accordingly, there were no grounds for objecting to her testimony as irrelevant. Similarly, there were no grounds for moving for a mistrial or for a continuance after she testified. Pursuant to Practice Book § 42-43, "[u]pon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant's case." As discussed supra, the state did not materially vary its proof from the allegations in the long form information by presenting the testimony of Vasquez, and both the petitioner and Attorney Woodward were aware of her statement and the possibility that she would testify prior to the commencement of the trial.
Likewise, there were no grounds for objecting to the prosecutor's remarks during his closing argument. The closing arguments apparently were not recorded or at least not transcribed. Accordingly, the Court does not have the benefit of reviewing them. Accepting the petitioner's representations that the prosecutor argued that he was not the driver of the Lexus but that he just dropped off the carjackers as true, this Court finds no reason why Attorney Woodward should have objected to these remarks. "[I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line . . . Nevertheless, [w]hile a prosecutor may argue the state's case forcefully, such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom." (Internal quotation marks omitted.) State v. Williams, 102 Conn.App. 168, 193-94, 926 A.2d 8, cert. denied, 284 Conn. 906, 931 A.2d 267 (2007). In the petitioner's case, the prosecutor's argument was both fair and based upon facts in evidence. Again, the state presented two ways in which the petitioner may have been involved in the carjacking. The petitioner did not cite and this Court knows of no authority prohibiting a prosecutor from arguing that a single crime was committed in one way over another where alternative ways have been alleged. Based upon the evidence presented at the trial, the prosecutor may very well have decided there was more evidentiary support for the allegation that the petitioner conspired to commit kidnapping, larceny and robbery by dropping the carjackers off at the dealership and thereby, argued accordingly. The petitioner has failed to demonstrate that this constitutes prosecutorial impropriety. Consequently, Attorney Woodward cannot be found ineffective for failing to object to the prosecutor's remarks in his closing argument.
See Respondent's Exh. B, p. 142.
As for failing to file a bill of particulars, the petitioner has similarly failed to demonstrate that this constitutes ineffective assistance of counsel. Attorney Woodward testified that he did not feel it was necessary to file a bill of particulars because he had the long form information and was able to look at the contents of the state's file, as the state had an open file policy. He did acknowledge, however, that filing a bill of particulars would have helped to pin down the state's theory of the case. While it is true that "[a] bill of particulars limits the state to proving that the defendant has committed the offense in substantially the manner described;" State v. Steve, supra, 208 Conn. 44; there is no evidence before this Court that had Attorney Woodward filed a motion for a bill of particulars, the state would have responded by alleging only one way in which the petitioner conspired to commit the crimes alleged. "Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009). The state could have included both alternative ways in its response. See State v. Pulley, 46 Conn.App. 414, 424, 699 A.2d 1042 (1997) ("[i]t is permissible to charge a defendant, or to instruct a jury, in the disjunctive if reference is not being made to separate offenses but if . . . reference is being made only to alternate ways of committing the same crime"). Additionally, even if the state specified that the petitioner committed conspiracy by driving the stolen Lexus, the petitioner is unable to demonstrate that the court would not have permitted the state to amend the information before the close of its evidence. See Practice Book § 36-18 ("[a]fter commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced"). Towards the end of its case-in-chief, the state presented evidence that the petitioner dropped two men off at the Enfield dealership with knowledge that they intended to steal a car. Under these circumstances, it is not inconceivable that the trial court would have allowed an amendment to conform the information to the proof, especially since the petitioner was fully aware of this evidence prior to trial. In short, the petitioner has not met his burden in showing either deficient performance or prejudice regarding his claim that Attorney Woodward should have filed a motion for a bill of particulars.
The petitioner next claims, in count four of his petition, that his appellate counsel rendered ineffective assistance by not raising the issues raised in count two of his present petition on direct appeal. "[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 petitioner would have prevailed in his direct appeal." (Internal quotation marks omitted.) Turner v. Commissioner of Correction, 118 Conn.App. 565, 568, 984 A.2d 793 (2009), cert. denied, 296 Conn. 901, 991 A.2d 1104 (2010). The petitioner presented little to no evidence on this claim at the habeas trial. Accordingly, this Court finds that he has, if not abandoned this claim, failed to meet his burden of proof as to it. Even if the petitioner's appellate counsel raised the issues discussed supra on direct appeal, the petitioner would not have prevailed, as the state did not impermissibly vary its proof from the allegations in the long form information.
In count five, the petitioner claims that his prior habeas counsel rendered ineffective assistance by not raising the claims raised in count two of his present petition. "[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding . . . [A] petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective." (Citation omitted; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 394, 966 A.2d 780 (2009). The petitioner also presented little to no evidence on this claim. Regardless, it fails because the petitioner has not proven that his trial counsel rendered ineffective assistance as alleged in count two of his present petition. In other words, even if the petitioner's prior habeas counsel had raised these claims, they would have failed.
II. Actual Innocence
Apart from the ineffective assistance of counsel claims, the petitioner also claims, in count three of his petition, that he is actually innocent of the crimes of which he was convicted. "Our Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence . . . [Our Appellate Court], however, has held that a claim of actual innocence must be based on newly discovered evidence . . . [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.) Weinberg v. Commissioner of Correction, 112 Conn.App. 100, 119, 962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009).
Once this evidentiary burden is satisfied, "[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.) Mozell v. Commissioner of Correction, 291 Conn. 62, 80-81, 967 A.2d 41 (2009).
The only evidence offered in support of the petitioner's actual innocence claim was his own testimony. The petitioner testified at the habeas trial that he met the two men who carjacked the Lexus through Vasquez. They asked him for a ride to Enfield one day, and he gave them one. He testified that he did not know that they were going to kidnap somebody. He further testified, "They asked me for a ride, I dropped them off, and I left. Next thing I know, that car was parked on my street, and that's it." The petitioner's testimony is by no means newly discovered. He could have testified in his own defense at his criminal trial. In addition to not being newly discovered, the petitioner's self-serving testimony does not establish by clear and convincing evidence that he is actually innocent of the crimes of which he was convicted and that no reasonable fact finder would find him guilty of them. His claim of actual innocence fails.
October 14, 2009 Habeas Trial Transcript, p. 24.
CONCLUSION
Based on the foregoing, the petition for a writ of habeas corpus is DENIED. Judgment may enter in favor of the respondent. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.