Bosse v. Warden

• Decision Date: 23 March 2018
• Docket Number: CV144006598S
• Citation: Bosse v. Warden, CV144006598S (Conn. Super. Mar 23, 2018)
• Court: Connecticut Superior Court
• Parties: John BOSSE (Inmate #291007) v. WARDEN

John BOSSE (Inmate #291007) v. WARDEN

No. CV144006598S

Superior Court of Connecticut, Judicial District of Tolland, Somers, Geographic Area 19

March 23, 2018

UNPUBLISHED OPINION

OPINION

Kwak J., Superior Court Judge

The petitioner initiated the present matter by way of a pro se petition for a writ of habeas corpus filed on September 11 2014, and amended for the second time by assigned counsel on August 21, 2017.The amended petition raises claims in two counts and challenges the petitioner’s convictions in docket numbers CR01-0196687-SandCR01-0012582-T, judicial district of New Britain, following two separate jury trials.The petitioner is presently serving a total sentence of fifty-five years as a result of the sentences imposed in both underlying criminal matters.The respondent’s return denies the petitioner’s material claims.

The parties appeared before this court on October 11, 2017, for a trial on the merits.The petitioner entered into evidence electronic copies of trial transcripts, copies of exhibit lists, and copies of materials from two mental health experts retained by the defense.The respondent also entered electronic copies of trial transcripts into evidence, as well as a copy of the record on appeal from one of the petitioner’s direct appeals.The petitioner presented the testimony of his former defense counsel, Attorney Robert McKay, and his own testimony in support of his claims.The respondent did not call any witnesses.Both parties filed post-trial briefs.

For the reasons articulated more fully below, the petitioner’s claims are denied.

DISCUSSION

I.Underlying Facts

" On May 9, 2001, the [petitioner] was held for arraignment on an unrelated matter in the holding area of the Bristol courthouse.Because of threats from other prisoners, the [petitioner] was not held in the group cell in the holding area.Instead, he was handcuffed to a metal chair outside of the cells in a corridor approximately four feet wide.The [petitioner’s] right wrist was handcuffed to the arm of the chair, and he wore leg irons on his ankles that were not connected to the chair.The chair was not secured to the floor.

" The victim, judicial marshal Kevin Kelly, was providing security within the holding area.After incitement from prisoners in the adjacent cell, the [petitioner] picked up the metal chair.The [petitioner] held the chair by the arms in front of himself with the legs pointed forward and briskly walked toward Kelly, striking him with the chair.Kelly blocked the chair with his left arm and deflected the chair downward.The chair struck Kelly in his ribs, right hand and shin.The force of the impact drove Kelly, a 245 pound man, against the wall of the holding area.Other judicial marshals then responded and subdued the [petitioner].Following the attack, Kelly was treated at Bristol Hospital for his injuries.He received pain relief medication for a pulled muscle in his buttocks.His right thumb was stabilized with a splint.Kelly also had an abrasion on his shin.Subsequently, Kelly was diagnosed with an injury to his right wrist.

" The jury found the [petitioner] guilty of both counts, assault in the second degree and assault of a peace officer, and the court sentenced the [petitioner] to a total effective term of fifteen years in prison."State v. Bosse,99 Conn.App. 675, 676-77, 915 A.2d 932, cert. denied, 282 Conn. 906, 920 A.2d 310(2007).

" On the basis of the evidence presented at trial, the jury reasonably could have found the following facts.For several months prior to the incident underlying this appeal, the [petitioner] and the female victim were neighbors in an apartment building.The [petitioner] and the victim were acquaintances; they had never spoken to each other on the telephone, but the [petitioner] had once been to the victim’s apartment, visiting with her and her granddaughter.At approximately 9:30 p.m. on May 8, 2001, the [petitioner] called the victim on the telephone and invited her to his apartment to watch a movie with him.The victim declined the invitation, but the [petitioner], in a stern voice, insisted that she come to his apartment.After this initial conversation ended, the [petitioner] called the victim again, but the victim did not answer her telephone.

" A short time later, the [petitioner] appeared at the victim’s apartment, knocking on the door and windows.The [petitioner] identified himself and asked the victim to let him into her apartment.The victim became frightened.As she approached the door to her apartment, the [petitioner] burst through the door, wrapped his hands around her throat and began to choke her.A physical struggle between the [petitioner] and the victim ensued.While the victim tried to break free and to protect herself, the [petitioner] dragged her out of her apartment and into a nearby hallway.The [petitioner] told the victim to ‘go with it’ and to ‘let go.’In a hushed voice, the [petitioner] also told the victim that he loved her.At one point during the struggle, the victim pretended to faint, causing the [petitioner] to loosen his grip on her neck.The victim began to flee, but the [petitioner] grabbed her by one of her legs and pulled her back to him.Eventually, the struggle moved outdoors where the victim, experiencing difficulty as a result of the [petitioner’s] assault, began screaming for help.The [petitioner] caught up with her and pinned her against a wall.

" A bystander, Myron St. Pierre, heard the victim’s cries for help and observed the defendant attempting to pull the victim against her will back inside the apartment building.St. Pierre approached the [petitioner] and the victim, instructing them to break up the melee.The [petitioner] told St. Pierre: ‘[S]he just got out of a mental institute.She’s crazy.We can handle it ... it’s all right.’The victim told St. Pierre that the [petitioner] was lying and was trying to kill her.The victim also asked him to call the police.After the [petitioner] briefly chased the victim and St. Pierre, St. Pierre physically restrained the [petitioner] on the ground and instructed the victim to run to a nearby police station.The victim took refuge in her apartment and reported the incident to the police.St. Pierre restrained the [petitioner] until the police arrived on the scene.

" When David Posadas, an officer with the local police department, arrived at the scene, St. Pierre informed him that the [petitioner] had attacked the victim.Posadas asked the [petitioner] what had occurred, and the [petitioner] replied that he had not attacked the victim.The [petitioner] stated that the victim was suicidal and that he had tried to prevent her from harming herself.Posadas also spoke with the victim, who appeared to be upset and disheveled.The victim related the [petitioner’s] actions to Posadas; her account was corroborated in part by the caller identification function on her telephone, which reflected that the [petitioner] had called the victim earlier that evening.

" The [petitioner] was placed under arrest.A search of his person incident to his arrest yielded, among other items, a pair of handcuffs and a ‘bondage device.’^[1] The [petitioner] consented to a police search of his apartment.Although the [petitioner] was calm and cooperative with the police until and immediately following his arrest, he began mumbling to himself and rocking back and forth during the search of his apartment.During the booking process at the police department, the [petitioner] became combative with the police officers involved; he would not comply with the orders being given to him by the officers and refused to be fingerprinted.Officers ultimately used pepper spray in an effort to subdue the [petitioner].

" At approximately 3 a.m. on the morning following his arrest, the [petitioner] indicated that he wanted to discuss the events that culminated in his arrest.After waiving his right to remain silent, the defendant spoke with Sandra Mattucci, an officer with the local police department.The [petitioner] stated that, on the prior evening, he had intended to help the victim by bringing her ‘into a deeper level of consciousness and ... into a true reality.’He stated that he intended to accomplish this by using the handcuffs and bondage device found on his person and by raping and torturing the victim.The [petitioner] admitted that he entered the victim’s apartment and choked the victim to ‘make her unconscious so that he could bring her back upstairs to his apartment ... [and] bring her into this true reality.’He also stated that he previously had used the handcuffs and bondage device on himself and others."(Footnote renumbered.)State v. John B.,102 Conn.App. 453, 455-58, 925 A.2d 1235, cert. denied, 284 Conn. 906, 931 A.2d 267(2007).

II.Count One- Salamon/Luurtsema Claims

The petitioner makes several allegations in count one, paragraph 1, under the rubric of Salamon/Luurtsema .The petitioner claims that: (A)the trial court did not properly instruct the jury as to the charge of attempted kidnapping; (B)the petitioner was convicted for conduct that the statelegislature did not intend to criminalize with regards to the attempted kidnapping conviction; (C)the petitioner’s plea negotiations were unreasonably curtailed in light of the change in the interpretation of the kidnapping statute; and (D)the petitioner is being unreasonably and cruelly punished for conduct that is, in light of Salamon, no longer a crime in Connecticut.The petitioner further alleges that these due process violations prejudiced his case while also dramatically limiting his ability to obtain a lesser sentence or receive a conviction for a lesser offense.

" [A]defendant may be convicted of both kidnapping and...