Opinion
FBTCV13453468S
08-16-2017
Daniel Diaz v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PETITION FOR HABEAS CORPUS
ROBERT J. DEVLIN, JR., JUDGE.
In this habeas corpus matter, the petitioner, Daniel Diaz, asserts that his present incarceration is illegal and seeks the issuance of a writ of habeas corpus. His Amended Petition alleges five counts. Count one alleges a Brady violation, count two asserts that the petitioner's prosecution is barred by double jeopardy, count three alleges that petitioner's trial counsel was burdened by a conflict of interest, count four asserts that petitioner's trial attorney was ineffective and count five alleges that petitioner's appellate counsel was ineffective for failure to raise the double jeopardy and Brady claims on direct appeal. A trial on these counts was conducted over three days: July 27, 28 and 31, 2017.
The petition was originally brought in the Tolland Judicial District, and assigned docket CV13 4005355. When the case was transferred to the Fairfield Judicial District, the present docket number was assigned. For the most part, the pleadings in the file are styled using the CV13 4005355 number.
See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (Suppression of evidence favorable to the accused violates due process).
For the reasons set forth below, the petition is denied.
I
BACKGROUND
At his second criminal trial, the defendant was convicted of possession of narcotics with intent to sell by a non drug-dependant person in violation of General Statutes § 21a-278(b), two counts of possession of narcotics in violation of General Statutes § 21a-279(a) and criminal possession of a firearm in violation of General Statutes § 53a-217(a)(1). As reported by the Appellate Court, the jury could reasonably have found the following facts:
" In early 2001, the defendant was under investigation by the New Britain police department for illegal drug related activities. On March 13, 2001, New Britain police officers arrested Kevin Lockery, who was known by the police as a drug user for a narcotics offense. In an effort to gain lenient treatment, Lockery identified the defendant as a drug dealer and provided the police with information about the defendant. At the direction of the police, Lockery called the defendant on a cellular telephone and arranged to purchase five bags of heroin at a specific location in New Britain. Shortly after the defendant received Lockery's call, the defendant left his residence and drove to that location. Lockery did not meet the defendant as arranged and, after several minutes, the defendant began to drive away.
Police officers stopped the defendant's automobile. A search of the defendant yielded twenty-five packets of heroin, $1, 025 and a cellular phone that displayed among received calls the telephone number from which Lockery had called the defendant to arrange the drug purchase. A subsequent search of the defendant's residence, pursuant to a search warrant, yielded 168 packets of heroin, sixteen grams of marijuana, a twelve-gauge shotgun, several shotgun shells and numerous other items typically used in the sale and distribution of illegal drugs." State v. Diaz, 109 Conn.App. 519, 522-24, 952 A.2d 124 (2008).
Petitioner has had two jury trials and two direct appeals. At his first trial in 2002, the petitioner was self-represented. His conviction was reversed by our Supreme Court because the trial court did not adequately canvas him on his decision to waive counsel. See State v. Diaz, 274 Conn. 818, 878 A.2d 1078 (2005). At his second trial in 2006, the petitioner was represented by Attorney Frank Canace who served as a special public defender. His conviction following this second trial was affirmed by our Appellate Court on direct appeal. State v. Diaz, supra, 109 Conn.App. 519.
II
Count One: Brady Claims
As noted above, at his first trial the petitioner was self-represented. In count one of the amended petition, he asserts that the prosecutor failed to disclose certain exculpatory information pertaining to Kevin Lockery. Specifically, it is claimed that the prosecutor suppressed (1) Lockery's criminal record, (2) the fact that the drugs found on Lockery were not purchased from the petitioner as Lockery claimed and (3) that the drugs in Lockery's possession had a logo that differed from the logo on the drugs seized from the petitioner's person and residence.
At petitioner's first trial, Lockery testified that the packets of drugs found on him were purchased from the petitioner. Lockery did not testify at the second trial. In addition, the prosecutor did not disclose Lockery's record of criminal convictions despite the fact that he had convictions for narcotic felonies, felony failure to appear and larceny.
As to Lockery's criminal record, the prosecutor, prior to the first trial, asked her investigator to run Lockery through the so-called NCIC system to see if he had a criminal record. The record the investigator provided to the prosecutor showed no record of convictions and therefore no disclosure was made to the petitioner. See Exhibit O. That record, however, was for a different person with the name Kevin Lockery. The correct record shows the convictions noted above. See Exhibit 10.
As to the drugs that the police found on Lockery, he testified at the first trial that he purchased them from the petitioner. At the hearing on the present petition, Lockery said that he was pressured by the police to say that. Moreover, the logo on the drugs found on Lockery (red lips) was different from the logo on the drugs found in the petitioner's possession (smiley faces).
This court finds that the failure to disclose Lockery's correct record was not intentional but rather due to negligence. The non-disclosed record was, however, exculpatory. The court further finds that the prosecutor did not knowingly elicit perjured testimony from Lockery regarding the seller of the drugs found on him. It is true that the prosecutor at the petitioner's 2001 trial was the same prosecutor who handled Lockery's change of plea hearing in April 2001. This court accepts the testimony of the prosecutor that given the volume of disposed cases at G.A.#15, she did not connect the April hearing to the trial proceedings in 2002. Lockery did ultimately attempt to recant his testimony but that did not occur until fifteen years after the conclusion of the first trial.
In 2001, GA#15 disposed of approximately 2, 800 cases.
The main reason that the allegations in count one lack merit is that the petitioner has already obtained the relief that he is entitled to. As noted above, our Supreme Court reversed the convictions from the first trial and remanded the case for a new trial. The sentence the defendant is serving is from the second trial at which Lockery did not testify. A Brady violation in the first trial would have only entitled the petitioner to a new trial. He has already received such relief, albeit on different grounds. Habeas corpus relief on count one is denied.
III
Count Two: Double Jeopardy
In count two, the petitioner alleges that the Brady violations asserted in count one should act as a double jeopardy bar to further prosecution of the defendant such that there never should have been a second trial.
" The double jeopardy clause of the fifth amendment to the United States Constitution protects a criminal defendant from repeated prosecutions for the same offense . . . As part of this protection against multiple punishments, the double jeopardy clause affords a criminal defendant a valued right to have his trial completed by a particular tribunal." Oregon v. Kennedy, 456 U.S. 667, 671-72, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). This right can act as a bar to retrial under circumstances where a mistrial is precipitated by a prosecutor's misconduct. Id., 677-79.
In United States v. Wallach, 979 F.2d 912, (2nd Cir. 1992), the Kennedy rule was extended beyond the mistrial context to situations where the prosecutor's misconduct was undertaken to prevent an acquittal the prosecutor believed at the time was likely to occur in the absence of misconduct. Id., 916, See also State v. Colton, 234 Conn. 683, 663 A.2d 339 (1995).
Application of the double jeopardy bar is reserved for situations where there was deliberate prosecutor misconduct committed not just to prevent an acquittal but to prevent acquittal that the prosecutor believed was likely to occur in the absence of the misconduct. State v. Payne, 96 Conn.App. 488, 492, 901 A.2d 59 (2006).
This court finds that due to investigator negligence, the prosecutor did not disclose the correct criminal record for Kevin Lockery. This court does not find that the prosecutor elicited perjured testimony from Lockery regarding the source of drugs found on him by the police. Lockery's bald assertion that he was pressured into giving false testimony is not credible. It may well be that Lockery lied about the source of drugs found on him, but this court rejects petitioner's assertion that the prosecutor knew this. On the record of this hearing, it was reasonable for the prosecutor to accept Lockery's testimony as accurate. After all, Lockery had petitioner's name in his cell phone contacts under " BB" and, in short order, was able to call the petitioner and order drugs which the petitioner tried to deliver. This court rejects the petitioner's assertion that the prosecutor should have connected the factual basis for a brief guilty plea hearing eight months earlier so as to doubt Lockery's veracity on this point.
The double jeopardy bar is a harsh sanction. It is reserved for situations when the prosecutor either causes a mistrial or fails to disclose exculpatory information to prevent an acquittal the prosecutor deemed likely. This court accepts the prosecutor's testimony that at no time during the first trial were her actions motivated to prevent a likely acquittal. Moreover, the state had a strong case. The defendant was caught with drugs on his person while leaving the site of what was supposed to be a drug sale. In addition, his residence contained more drugs and a shotgun. Habeas relief on count two is denied.
IV
Count Three: Conflict of Interest
At his second trial, petitioner was represented by Attorney Frank Canace. Attorney Canace was a special public defender who had a contract with the Division of Public Defender Services to represent indigent defendants in the New Britain Judicial District. At the time of his representation of the petitioner, Attorney Canace was also employed as a New Haven police officer. Attorney Canace did not tell the petitioner this fact.
In count three of the amended petition, the petitioner asserts that Attorney Canace's employment constituted a conflict of interest in and of itself and further the Attorney Canace's divided loyalty manifested itself in the following respects: (1) he failed to move to dismiss the charges on double jeopardy grounds, (2) he failed to identify false statements in the search warrant affidavit, (3) he failed to adequately cross examine police witnesses concerning prior inconsistent statements and (4) he failed to cross examine police officers on the disparity of logos on the drugs seized from the petitioner versus the drugs found on Lockery.
In support of his assertions, the petitioner presented the testimony of Attorney Preston Tisdale. In 2006, Attorney Tisdale was employed by the Division of Public Defender Services as director of the special public defender program. Attorney Tisdale was informed that Attorney Canace was a special public defender at the same time that he was employed as a New Haven police officer. Attorney Tisdale looked into this matter and, in consultation with others in the Chief Public Defender's Office, determined that Attorney Canace would have to resign. This decision was based on two grounds. First, his lack of candor in his application for the special public defender contract wherein he described his position as a " municipal employee of the City of New Haven." Second, that clients would raise the types of claims that petitioner has raised here. Attorney Tisdale also considered an ethics opinion of undocumented source.
Attorney Canace started practicing as a criminal defense attorney in 1996 or 1997. Prior to commencing his representation of criminal defendants, he advised the New Haven police department of his plans. The corporation counsel for the City made inquiries as to the appropriateness of his representing criminal defendants while also serving as a police officer. Attorney Canace was advised that the corporation counsel had contacted the American Bar Association, the Statewide Grievance Committee and the New Haven State's Attorney's Office and was cleared to practice in the criminal courts except in the New Haven judicial district court, G.A. #6 and G.A. #8.
Attorney Canace was aware of Rule 1.7 of the Rules of Professional Conduct pertaining to conflict of interest but did not believe that his representation of the petitioner posed a conflict of interest because of his position as a police officer. Canace was also familiar with General Statutes § 54-1f pertaining to the arrest powers police officers. He did not believe that this statute eliminated police discretion as to whether or not to make an arrest.
A criminal defendant has a right to be represented by counsel free from actual conflicts of interest. Woods v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981); State v. Martin, 201 Conn. 74, 78, 513 A.2d 116 (1986); State v. Williams, 203 Conn. 159, 166-67, 523 A.2d 1284 (1987).
The petitioner asserts that Attorney Canace violated Rule 1.7 of the Rules of Professional Conduct. As relevant here, that rule provides:
" . . . a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer."
There was no evidence offered that Attorney Canace's representation of the petitioner was directly adverse to another client. Moreover, this court does not find that Attorney Canace's representation of the petitioner was limited by his responsibilities to the New Haven police department. This is borne out by the actions Attorney Canace took on behalf of the petitioner.
In connection with his representation of the petitioner, Attorney Canace had access to and reviewed the state's file. He also reviewed the transcript of petitioner's first trial. As to Kevin Lockery, Attorney Canace had planned to call him as a witness at the suppression hearing but Lockery could not be located. Attorney Canace had access to the public defender investigator for the New Britain judicial district and used that person to try to locate Lockery.
Attorney Canace filed a so-called Franks motion asserting false statements in the warrant affidavit. It was a " boiler plate" motion that did not identify the specific statements in the affidavit alleged to be false. He did identify those statements at the hearing on the motion conducted before Judge Gold.
Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (Where a defendant makes a preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly fake statement is necessary to a finding of probable cause, the fourth amendment requires that a hearing be held at defendant's request).
During the course of Attorney Canace's representation of the petitioner, the petitioner filed a grievance against Attorney Canace. After consultation with his malpractice insurance carrier, Canace filed a motion to withdraw as counsel.
Attorney Canace was generally aware of Lockery's arrest history. During the trial, Attorney Canace attempted to offer a letter signed by Lockery that was favorable for the defense because it was a recantation of his earlier testimony.
Attorney Canace had worked in New Britain as a special public defender in other cases and had had approximately ten trials of which five resulted in acquittals.
Attorney Canace denied ever colluding with police officers to hurt his clients. To the contrary, he used his knowledge of police work to identify instances of poor police investigation. Although he unsuccessfully sought to withdraw as petitioner's counsel, he represented the petitioner to the best of his ability. There was no effort to seek revenge.
This court finds Attorney Canace's testimony credible. He did not abandon defense strategies favorable to the petitioner for fear of challenging the credibility of police officers. He considered calling Lockery at the suppression hearing but could not find him. He moved to suppress based on alleged falsehoods in the search warrant affidavit but the trial court denied the motion. He selected areas of cross examination that he deemed most tactically productive.
The petitioner has offered no evidence to show that Attorney Canace's status as a police officer automatically created a conflict of interest. The decision of the Office of Chief Public Defender to end his special public defender contract was based on policy and not a categorical determination that Attorney Canace was burdened by a conflict of interest as the Rules of Professional Responsibility define that term. Nor is there any credible testimony that Attorney Canace was reluctant to challenge police testimony.
Habeas corpus relief on count three is denied.
V
Count Four: Ineffective Assistance of Counsel--Attorney Canace
In count four of the amended petition, the petitioner asserts that Attorney Canace provided ineffective assistance of counsel at the 2006 trial. It is well established that there are two components to a claim of ineffective assistance of counsel. A habeas petitioner must demonstrate the (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Johnson v. Commissioner of Correction, 218 Conn. 403, 421-24, 589 A.2d 1214 (1991). The burden to prove these two components is on the petitioner. Rodriquez v. Commissioner of Correction, 35 Conn.App. 527, 537, 646 A.2d 919 (1994). The first prong requires proof that counsel's performance fell below the reasonable competence of lawyers of ordinary training and skill in criminal law. Giannotti v. Warden, 26 Conn.App. 125, 130, 599 A.2d 26 (1991). To establish the prejudice prong, petitioners 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. Strickland v. Washington, supra, 466 U.S. 694. Stated differently, when a petitioner challenges their conviction on the ground of ineffective assistance of counsel, the question is whether there is a reasonable probability that, absence the errors, the factfinder would have had a reasonable doubt respecting guilt. Jeffrey v. Commissioner of Correction, 36 Conn.App. 216, 221, 650 A.2d 602 (1994).
The petitioner offered no expert evidence that Attorney Canace's representation fell below the level of a reasonably competent attorney. Instead, the petitioner identified areas in the record of the 2006 trial where, according to the petitioner, Attorney Canace was ineffective.
The petitioner has identified five instances of alleged ineffective representation by Attorney Canace:
The first concerns testimony of Officer Chrotowsli. In the first trial, Chrotowski testified that he was informed that Officer Steck found narcotics in the bedroom. In the second trial, he testified that he observed Officer Steck emerge from the bedroom with numerous packets of drugs.
The second claimed inconsistency relates to a conflict between the testimony of Chrotowski and Steck. Chrotowski testified that, " We were all familiar with Daniel Diaz" whereas Steck testified that, " I don't know that I know him."
The third claimed inconsistency again pertains to Chrotowski's testimony in the first and second trials. In the first trial, he testified that Lockery was arrested for possession of narcotics and agreed to help the police get his supplier, namely, the petitioner. In the second trial, he testified that Lockery was arrested for possessing two bags of drugs and the purchase of those drugs had nothing to do with the petitioner.
The fourth point is that while Attorney Canace made a motion for judgment of acquittal at the close of the state's case, he did not make any argument in support of the motion.
The fifth point is a claim that Attorney Canace should have investigated a pizza box left at the house where the search warrant was executed to show that the police left the house unsecured in order to pick up a pizza.
Attorney Canace's decision not to pursue the areas suggested by petitioner was reasonable strategy. The inconsistency regarding the finding of drugs in the bedroom is inconsequential. Challenging Chrotowski's claim that all the police were familiar with Diaz would have opened the door to how and why they had such familiarity and potentially let in damaging testimony. While Chrotowski was clearly inconsistent regarding where Lockery obtained the drugs he was caught with, there was no sense in disturbing the testimony at the second trial that they were not connected to the defendant. The decision not to make an argument in support of the motion of judgment of acquittal was reasonable in light of the fact that there was clearly sufficient evidence, if accepted by the jury, to support a conviction. Finally, the decision not to pursue investigative resources on the pizza box was reasonable in light of the fact that petitioner's claim that it proved that the scene was unsecured was speculative.
Conversely, Attorney Canace made some skillful points in the petitioner's favor during the trial. He crossed examined the police regarding the phone call Lockery supposedly made to the defendant's number and established that (1) the police did not know the duration of the call, (2) the police did not hear a voice on the other end of the call, (3) the police did not know for sure that the call connected and (4) did not check with the phone carrier to corroborate that the call was made. He requested a jury instruction regarding the state's failure to call Lockery as a witness. He pursued a strategy that the police had set up the petitioner and established that Chrotowski had never actually seen the petitioner dealing drugs and that since drug deals have to be made quickly, it made no sense that the petitioner had drugs secreted in his pants as claimed by the police.
This court finds that Attorney Canace was competent. Moreover, the alleged deficiencies in representation by Attorney Canace do not undermine the confidence in the outcome of the trial. As discussed above, the state had a strong case against the petitioner.
Habeas corpus relief on count four is denied.
VI
Count Five: Ineffective Appellate Counsel
The petitioner asserts that his appellate counsel for the direct appeal of the 2006 conviction, Attorney Mark Diamond, was ineffective in two respects. Attorney Diamond did not raise the double jeopardy claim on direct appeal and also did not raise the Brady claim relating to Kevin Lockery police record and drug purchase.
No expert testimony was offered in support of the assertion that Attorney Diamond was not competent nor did Attorney Diamond testify at the trial. As discussed above this court finds no merit to either claim and therefor the failure to raise them on direct appeal was not ineffective.
Habeas corpus relief on count five is denied.
Conclusion
For the reasons set forth above the petition for habeas corpus is denied.
So Ordered.