Opinion
No. CV 05 4000648 S
August 11, 2009
MEMORANDUM OF DECISION
The petitioner initiated this matter by way of a petition for a writ of habeas corpus filed August 30, 2005, and which was amended for the last time on December 1, 2008. The second amended petition raises a claim of ineffective assistance of trial counsel, Frank Cannatelli. The petitioner claims attorney Cannatelli had an "inherent" conflict of interest with the petitioner when the petitioner's case proceeded to trial in November 1991. The petitioner alleges that the attorney's recent personal acquittal on bribery charges compromised the attorney's ability to effectively represent the petitioner on his criminal charges before a jury, thereby depriving the petitioner of his right to be represented by counsel free of and uninfluenced by a conflict of interest in violation of article first, § 8 of the Connecticut Constitution and the sixth and fourteenth amendments to the United States Constitution. Attorney Cannatelli was, himself, earlier charged in an unrelated case in Meriden with two counts of bribery of a witness. After pleading not guilty and electing trial by jury, Cannatelli went to trial in October 1991. After a brief deliberation, the jury acquitted Cannatelli on all charges October 29, 1991. Because the attorney represented the petitioner coincident with preparing for and standing trial on his own criminal charges, the petitioner argues, this court ought to "presume" prejudice to the petitioner and requests that this court grant him a new trial, immediate release, or other relief in equity or law. In the return to the second amended petition, the respondent denies the substantive allegations set forth by the petitioner. The respondent also pleads special defenses of procedural default and res judicata. In his reply, the petitioner denies he is either procedurally defaulted from raising any of his claims or that res judicata bars his litigation here.
The petitioner was charged by substitute information with burglary in the first degree in violation of General Statutes § 53a-101(a)(1), attempted assault in the first degree in violation of General Statutes § 53a-49(a)(2) and General Statutes § 53a-59(a)(1), robbery in the third degree in violation of General Statutes § 53a-134(a)(3), interfering with a police officer in violation of General Statutes § 53a-167a(a) and carrying a dangerous weapon in violation of General Statutes § 53-206. Previously, on May 29, 1991, attorney Cannatelli filed his appearance on behalf of the petitioner. On November 26, 1991 the parties appeared before the Honorable Judge Thomas O'Keefe for jury selection. Evidence began on December 2, 1991 and concluded the following day, December 3. After closing argument and charge, the jury returned a verdict of guilty on the charges of attempted assault in the first degree, burglary in the first degree, robbery in the third degree, carrying a dangerous weapon and interfering with a police officer. On March 6, 1992, the petitioner was sentenced byte court, O'Keefe, J., to a total term of imprisonment of sixteen years, execution suspended after nine years with five years probation. Thereafter, the petitioner appealed his convictions, which were affirmed by the Appellate Court. See State v. Rodriguez, 61 Conn.App. 700, 767 A.2d 756 (2001). In that appeal, the petitioner notably claimed he was deprived of the adequate assistance of counsel because the trial court failed to conduct an adequate investigation of his claim that his counsel had a conflict of interest. Id., 702. The court found, however, the defendant never provided direct factual support for his allegations that a conflict of interest affected his attorney's ability to represent him at trial. Id., 709. On November 18, 1992, the petitioner, pursuant to a plea agreement, entered guilty pleas before Judge Richard Stanley to the charges of attempt to commit assault in the first degree, two counts of criminal mischief in the first degree and one count of possession of a weapon in a motor vehicle. Thereafter, the court, Stanley, J., sentenced the petitioner to a total effective sentence of twenty-five years incarceration suspended after fifteen years with four years probation. The sentence was to run concurrent with the sentence the petitioner was serving.
The petitioner has pursued other actions. The petitioner filed a previous petition for a writ of habeas corpus based upon his attorney's conduct regarding the plea before Judge Stanley. The habeas trial court, Judge John Downey, denied the ineffective assistance of counsel claim against the petitioner's trial attorney, John Williams, who appeared with Rodriguez before Judge Stanley. The court did, however, find the petitioner's appellate counsel inadequate and restored the petitioner's appellate rights in that case. Sometime thereafter, the petitioner was arrested on a violation of probation (VOP) in 2002. Again, in 2003, the petitioner was sentenced by the court, Licari, J., to terms of seven years and ten years on the two docketed VOP cases, each sentence to run concurrent to each other for a total effective sentence of ten years. The petitioner appealed the violation of probation convictions. The judgments were affirmed, per curam; See State v. Eddie Rodriguez, 89 Conn.App. 902, 873 A.2d 268 (2005).
The parties appeared on April 29, 2009 for trial in the present matter. The court heard testimony from Attorney Frank Canatelli, the petitioner, Mr. Eddie Rodriguez and George Gray, an investigator with the office of the Chief Public Defender. Additionally, the following documents were entered into evidence as full exhibits: petitioner's one and two, copies of the transcript from proceedings in re State v. Rodriguez, CR 96 333659; petitioner's three, Jury panel #NNH 333980; petitioner's exhibits five through eight, a series of press articles from the Meriden Record Journal dated October 25, 26, 29, and 23, 1991 respectively. Petitioner's 9 is an article from the New Haven Register, Milford edition dated October 30, 1990. Petitioner's 10 is an article from the New Haven Register "N" edition dated October 30, 1991. Petitioner's 11 is a New Haven Register article "E" edition dated October 30, 1991. Petitioner's 12 is a Record Journal audit report dated November 1992. Petitioner's 15 is a newspaper article described as "unstated" in the clerk's notes. Respondent's A is a copy of the court decision in State v Rodriguez, supra, 61 Conn.App. 700.
For the reasons stated more fully below, the court denies the petition for a writ of habeas corpus. Judgment shall enter for the respondent.
FINDINGS OF FACT
The following underlying facts are taken from the Appellate Court opinion on direct appeal. "On October 23, 1990, the defendant became involved in a confrontation with the victim, his estranged girlfriend, who worked as a secretary-receptionist at the South Central Elderly Nutrition Project in New Haven. Although the victim had terminated their relationship one week earlier, the defendant went to her New Haven office on the day in question seeking to take her to lunch. The defendant had been drinking heavily that morning and, after he arrived at the office, he argued with the victim, tore a necklace from her neck and struck her in the face. Matbilda Gibbs, the victim's supervisor, immediately ordered the defendant to leave the building. In response to complaints from the victim's coworkers, officers from the New Haven police department came to the building, conducted an investigation and issued a police radio broadcast that alerted other officers to be on the lookout for the defendant. After the officers departed, a supervisor locked all of the building's doors and windows to keep the defendant out in the event that he should return. Despite those precautions, the defendant appeared a short time later and crashed through a first floor window, kicked in the door to the victim's office, pulled a knife from his pants, pinned her against the wall and threatened to kill her. Gibbs came to the victim's assistance and grabbed the defendant's arm. The handle of the knife fell to the floor, but the defendant maintained his grip on the eight inch to ten inch blade. The victim managed to escape to another office and called the police while Gibbs restrained the defendant. Several other workers joined the victim in the office where she took refuge. The defendant ultimately escaped from Gibbs and made an unsuccessful attempt to kick in the door to the office in which the victim was hiding. He also threatened the victim's coworkers, saying that he would "get" them. When police officers arrived for the second time that day, the defendant fled from the building. The officers chased the defendant through the surrounding neighborhood and eventually apprehended and arrested him. Following his arrest, the defendant continued to call the victim and send her mail. On November 13, 1990, he also telephoned one of her coworkers, Phyllis Ford, who had seen the defendant kick in a glass window and enter the building on the day of the incident. In his call to Ford, the defendant said, `Hey, Phyllis, I understand you're hanging around with [the victim] . . . And you know, I'm going to get you for that . . . And if I don't get you, I have friends who will get you.' Thereafter, the defendant was charged with burglary in the first degree, attempt to commit assault in the first degree, robbery in the third degree, interfering with an officer and carrying a dangerous weapon. Following a jury trial, the defendant was found guilty as charged." State v. Rodriguez, supra, 61 Conn.App. 703-04.
At the habeas trial Cannatelli testified that prior to his employment as an attorney he was a corrections counselor or officer in New Haven. While working at the Whalley Avenue jail, it was there he met and came to know the petitioner who, although a police officer, was arrested and incarcerated on criminal charges. Cannatelli described his relationship with the petitioner as "good friends." After passing the bar in 1988, Cannatelli practiced in Hamden and was employed part-time as a professor of political science at Southern Connecticut State University. Prior to representing the petitioner, Cannatelli was arrested on bribery charges. While accused of the crimes, he attended court in Meriden, "quite a few times." That Cannatelli was charged and eventually tried and acquitted in court was reported in the local newspapers. See petitioner's exhibits 5, 6, 7, 8, 9, 10, 14 and 15. A jury found Cannatelli not guilty of all charges in October 1991. Subsequently, the petitioner was called into the New Haven J.D. to stand trial on his charges November 26, 1991. Cannatelli testified he earlier had discussed his pending charges with Mr. Rodriguez when Rodriguez and his family retained him. Cannatelli testified he could not recall getting a written waiver of potential conflict from Rodriguez. When asked by the court, Cannatelli credibly testified he obtained a verbal waiver of any potential conflict. While facing charges himself, Cannatelli was represented by his own counsel. He testified he asked the petitioner if he, Rodriguez, wanted to get another attorney or, as he termed it, "continue with me." The petitioner, according to Cannatelli, did not express any concern about Cannatelli continuing to proceed. At some point in time, Rodriguez was arrested on another criminal case or cases for which he hired attorney John Williams. At no time did Rodriguez ask Cannatelli to withdraw or seek to fire Cannatelli. On the first day of jury selection, the petitioner voiced concerns to the court about a possible conflict of interest due to Cannatelli's recent criminal acquittal. See State v. Rodriguez, supra. Upon detailed inquiry, the trial court, O'Keefe, J., was unpersuaded there existed cause to cease proceeding. Id., 703-04. Attorney Cannatelli testified in this habeas proceeding that each juror, during voir dire, was asked if he or she knew or had any prior knowledge about Cannatelli or his client. None of the jurors, apparently, voiced any concerns. No questions were asked of the Rodriguez veniremen regarding the prosecution, trial or acquittal of Cannatelli. Cannatelli testified he was prepared and "ready to go to trial" on Rodriguez's case. Cannatelli testified he had no concerns about any of the jurors' ability to serve on the petitioner's case. Jury selection commenced and concluded aver a period of two days ending November 27, 1991. The case was tried over two days in December 1991. The jury returned a verdict of guilty on multiple counts on December 4, 1991.
During this habeas trial, the court heard the testimony from the petitioner, Mr. Rodriguez. The petitioner's testimony was no more illuminating on the issue of conflict of interest than that in front of Judge O'Keefe prior to jury selection nearly twenty years ago. The petitioner testified that Canatelli never alerted him to a potential conflict. He testified it was attorney Williams who first told him about Canatelli's criminal charges and acquittal. He claimed he never agreed in writing or verbally to waive any potential conflict.
The court also heard testimony from the public defender investigator, George Gray. Mr. Gray culled a number of news clippings and articles which referenced the Canatelli prosecution and/or acquittal. The coverage was minimal. See petitioner's exhibits referenced earlier.
DISCUSSION
"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. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the [s]ixth [a]mendment . . . 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 . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
"The first part of the Strickland analysis requires the petitioner to establish that . . . counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . .
"Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Andrades v. Commissioner of Correction, 108 Conn.App. 509, 512, 948 A.2d 365, cert. denied, 289 Conn. 906, 957 A.2d 868 (2008).
"Our Supreme Court has established the proof requirements where a habeas corpus petitioner claims ineffective assistance of counsel because of a claimed conflict of interest. Where . . . the defendant claims that his counsel was burdened by an actual conflict of interest . . . the defendant need not establish actual prejudice. Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breached the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests . . . In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance." (Internal quotation marks omitted.) Myers v. Commissioner of Correction, 68 Conn.App. 31, 34, 789 A.2d 999, cert. denied, 260 Conn. 907, 795 A.2d 545 (2002).
"Prejudice may be presumed in some sixth amendment contexts, such as the actual or constructive denial of assistance of counsel altogether or various forms of state interference with counsel's assistance . . . In the context set forth by the present case — that of counsel allegedly burdened by a conflict of interest — there is no presumption of prejudice per se. `Prejudice is presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, [ 446 U.S. 335, 348-50, 100 S.Ct. 1078, 64 L.Ed.2d 333 (1980] .' (Internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. at 692. The Second Circuit Court of Appeals has honed this test further. `Once a defendant has established that there is an actual conflict, he must show that a lapse of representation . . . resulted from the conflict . . . To prove a lapse of representation, a defendant must demonstrate that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests . . . Finally, [w]hether a defendant's representation was constitutionally inadequate is a mixed question of law and fact and thus we exercise de novo review.' (Citations omitted; internal quotation marks omitted.) United States v. Stantini, 85 F.3d 9, 16 (2d Cir. 1996)." (Citation omitted; internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 387, 788 A.2d 1221, cert. denied sub nom. 537 U.S. 836, 123 S.Ct. 152, 154 L.Ed.2d 56 (2002).
Here, it is clear the petitioner argues Cannatelli had an "inherent" or actual conflict of interest. (Second Amended Petition at p. 5 dated December 1, 2008; petitioner's pretrial brief at 1.) Hence, it is incumbent on the petitioner to establish that, at the time Cannatelli prepared for and tried the petitioner's case before a jury, Cannatelli was actively representing conflicting interests and that any conflict in fact adversely affected his performance as Mr. Rodriguez's lawyer. What is clear is that Mr. Cannatelli was acquitted more than one month before jury selection began on the petitioner's trial. The petitioner has not pointed to, let alone established any fact to indicate that Mr. Cannatelli was serving two masters when the petitioner's case was tried. Other than a broad brush claim that the petitioner was prejudiced, the petitioner cannot and has not articulated anything counsel failed to do, ought to have done differently, or did in fact to cause injury to the integrity of his representation of the petitioner. The court accredits the testimony of the attorney that he discussed any potential conflict with his client and his client verbally waived any conflict. What's more, there is no indication in the record that any juror was in any way tainted, affected negatively or viewed the proceedings involving the petitioner in a way which can be said to undermine the process of his defense.
The respondent raised the defenses of both procedural default and res judicata as to the petitioner's sole claim that his attorney was burdened by a conflict of interest. The record reveals that, on appeal, the petitioner raised only the claim that the trial court erred in not conducting an investigation into potential conflict when the petitioner raised it at trial. This is not dispositive of the issue of whether a conflict existed, which is better raised via habeas corpus; thus, the present claim has not been decided and is not barred by res judicata. See State v. Vega, supra, 259 Conn. 385-86 (contrasting claims of trial court error for failure to inquire and ineffective assistance due to conflict of interest). The corollary is that the petitioner is also not procedurally defaulted from raising the present claim because he could not have raised it at trial or on direct appeal, it essentially being an ineffective assistance of counsel claim grounded in an alleged conflict of interest that is appropriately raised in a collateral habeas corpus proceeding. See id. Therefore, the court will proceed to consider the merits of the petition.
The petitioner relies upon Phillips v. Warden, 220 Conn. 112, 595 A.2d 1356 (1991), to support his claim that he was disserved on a constitutional level regarding his right to a conflict-free representation. In Phillips, the petitioner was convicted of sexual assault while represented by his attorney, Bernard Avcollie who, at the time he tried the petitioner's case, was a convicted felon and murderer. The court in Philips, indeed, found that an inherent conflict existed that required the attorney to withdraw. Id., 141. It is equally clear that the holding in Phillips was limited to the unique facts of that case, which facts are markedly dissimilar to those in the present case such that prejudice here cannot be presumed; the Phillips court remarked as follows:
Surely no other criminal defendant in the history of Connecticut jurisprudence — indeed, in the history of American jurisprudence — has ever had to face a jury in a trial for serious and violent criminal offenses, while represented by a convicted murderer, whose conviction was likely to have been known by the jurors, in the judicial district where both the murder and conviction took place, where both the murder and its ensuing legal aftermath had been widely reported in the press, and when the murderer was literally on his own way to prison. Surely, no other attorney in the history of Connecticut or American jurisprudence has ever brought with him to the criminal jury courtroom the potential for prejudice to his client that Avcollie brought to the Waterbury courtroom in April 1983. Under these unique factual circumstances, we are constrained to conclude that there was a constitutionally impermissible risk that the petitioner's jurors would identify Avcollie's status as a convicted murderer with his client's status as an accused rapist, kidnapper and burglar, and that they would transfer to the petitioner the distaste or revulsion that they may have felt for his lawyer. We cannot blind ourselves to the real and substantial risk that one or more of the petitioner's jurors may well have known of Avcollie's murder conviction and viewed the petitioner's defense through a lens corrupted by that knowledge. Avcollie believed that risk to be a reality. That risk, which was all too apparent to Avcollie from the very beginning and which persisted throughout the proceedings, demanded no less than that Avcollie, burdened as he was by his own well publicized murder conviction, simply refrain from representing the petitioner before a Waterbury jury in April 1983 . . . The only issue which should have been before the jury was [the petitioner's] conduct, not that of his attorney . . . There was an impermissible risk that the jurors would unintentionally [impute] the . . . improprieties of defense counsel to his client . . . (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 141-42. "Furthermore, an independent attorney, exercising his reasonable professional judgment, would have counseled the petitioner strongly against permitting Avcollie to represent him on such serious criminal charges at that place and time. The petitioner was entitled to no less from Avcollie." Id., 142.
Here, Cannatelli was acquitted, not convicted, in a criminal case with a much lower profile than that of attorney Avcollie. The evidence here of likely spillover into the jury panel is insubstantial. The trial court, O'Keefe, J., was in the best position to address any issue of conflict and potential for prejudice to Mr. Rodriguez. No conflict in fact or risk of conflict was established prior to jury selection here. The record in this habeas trial is equally lacking to suggest, let alone establish, that Cannatelli was torn between inquiring with jurors about his own predicament with the court system versus aggressive advocacy in defense of Mr. Rodriguez. Cannatelli's own case was in Meriden. The petitioner's case was tried in the New Haven Judicial District. Moral and professional opprobrium attaches to an attorney who is convicted of the high crime and felony of the offense of murder. If anything, sympathy and curiosity might attach to Cannatelli. But again, there is nothing in the record here to suggest the jury in rendering a verdict of guilty did not carry out their fact finding function in accordance with the charge by the court. The petitioner argues for this court to interpret Phillips as creating a per se bar to any attorney who was charged with criminal offenses, regardless of their nature or outcome in the proceedings, from representing individuals accused of crimes in our state courts. This would be precisely the outcome that the court in Phillips sought to avoid by clearly limiting its ruling to the facts of that case. If there is no presumption of conflict of interest from an attorney's conviction of a crime there can be no such presumption of conflict when an attorney, such as Cannatelli here, is found not guilty of crimes. There has been no showing that Cannatelli was distracted by his own travails in representing the petitioner. Moreover, there has been no indication of any "lapse in representation" embodied by the failure to pursue some plausible alternative defense strategy or tactic that was avoided because of the conflict. See State v. Vega, supra, 259 Conn. 387; see also Armienti v. United States, 234 F.3d 820, 824 (2nd cir. 2000). The only such "lapse" argued was the failure of attorney Cannatelli to inquire into potential jury members' knowledge of his criminal case; however, there has been no proof that either voir dire or the trial of the case, including the presentation of witnesses on behalf of the petitioner, was in any way affected negatively — indeed, in any way affected at all — by Canatelli's arrest and acquittal. Venireman here had opportunity to make known any knowledge, however passing or remote, with both the attorney and petitioner. Again, the record is bereft of any comment or suggestion in voir dire that the jury selection process, the composition of the jury that sat on the case itself, or the jury's deliberation was in any way tainted or prejudiced or that there existed a real substantial risk for same. Withdrawal under the facts and circumstances here was simply not required as a matter of law. There has been no showing that either an actual conflict of interest existed here or that there was a lapse in representation by Mr. Cannatelli.
CONCLUSION
For all the foregoing reasons, the petition for a writ of habeas corpus is denied. Judgment shall enter in favor of the respondent. Counsel for the petitioner shall submit a judgment file to the clerk within thirty days of the date of this decision.
It is so ordered.