Bova v. Commissioner of Correction

• Decision Date: 25 April 2006
• Docket Number: No. 25892.,25892.
• Citation: 95 Conn.App. 129,894 A.2d 1067
• Court: Connecticut Court of Appeals
• Parties: Mark L. BOVA, Sr. v. COMMISSIONER OF CORRECTION.

Page 1067

894 A.2d 1067

95 Conn.App. 129

Mark L. BOVA, Sr. v. COMMISSIONER OF CORRECTION.

No. 25892.

Appellate Court of Connecticut.

Argued February 16, 2006.

Decided April 25, 2006.

Auden Grogins, special public defender, for the appellant (petitioner).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Angela R. Macchiarulo, assistant state's attorney, and Carolyn K. Longstreth, former senior assistant state's attorney, for the appellee (respondent).

FLYNN, C.J., and GRUENDEL and FOTI, Js.

Opinion

GRUENDEL, J.

The petitioner, Mark L. Bova, Sr., appeals, following the granting of his petition for certification to appeal, from the habeas court's judgment dismissing his second amended petition for a writ of habeas corpus.¹ On appeal, the petitioner claims that the court improperly concluded that he failed to prove that he was denied the effective assistance of counsel at his criminal trial or that he was prejudiced by the alleged deficiency. We affirm the judgment of the habeas court.

The petitioner's claim arises from the conduct of his counsel, John R. Williams during the testimony of Diane Donofrio, a witness for the prosecution. On November 14, 1994, during direct examination, Donofrio testified about her prior relationship with the petitioner,² her contact with the police about her knowledge of the petitioner's murder of his wife and Donofrio's actual participation in the crime.³ In connection with her involvement in the crime, Donofrio further testified on direct examination that she was charged with aiding and abetting murder and conspiracy to commit murder. During cross-examination, Williams elicited testimony from Donofrio about the potential length of the sentences that she could receive if convicted of either of the charged offenses. He then elicited testimony from Donofrio that, despite these charges, she was released on a $100,000 nonsurety bond and was able to go home that evening. Testimony for the day concluded shortly thereafter.

The following day, November 15, 1994, the court informed counsel for both parties, outside the presence of the jury and Donofrio, that it had received an unsigned note from the jury stating: "What is a nonsurety bond? We're confused as to what this means." Thereafter, Williams recommended that the court answer the question, but because the question "sort of suggests that they're deliberating," he also recommended that the court reinstruct the jury not to talk about the case. The prosecutor disagreed, stating that the state did not think the question should be answered because it would encourage deliberation and it was not evidence. The state, however, agreed that the jury should be reinstructed that it should not yet deliberate. Because counsel for both parties did not agree that the court should answer the jury's question, the court declined to do so.⁴ After Donofrio and the jury returned to the courtroom, the court informed the jury that it could not add evidence to the case by answering their question. The court then continued to remind the jury that it should not begin deliberating until the end of the trial.⁵ Thereafter, Williams continued with cross-examination of Donofrio.

Following the conclusion of trial, the petitioner was convicted of the charged offenses and sentenced. On March 9, 1999, the petitioner filed a second amended petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel. Specifically, the petitioner claimed that Williams "failed to adequately protect [the] petitioner's right to an impartial jury" and that he "failed to adequately protect [the] petitioner's trial rights when it became apparent the jury was deliberating before the close of all evidence."⁶ The habeas claim was tried to the court on July 21, 2004. At the hearing, neither the petitioner nor the respondent offered any testimony. Instead, the petitioner rested on documents he previously had submitted to the court, including transcripts, pleadings and supplemental legal research.⁷ The court dismissed the petition by memorandum of decision on September 1, 2004,⁸ and on September 13, 2004, granted the petitioner certification to appeal.

"Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary....

"In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient.... Second, the [petitioner] must show that the deficient performance prejudiced the defense.... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversarial process that renders the result unreliable." (Internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn.App. 420, 424-25, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom. Santiago v. Lantz, ___ U.S. ___, 126 S.Ct. 1472, 164 L.Ed.2d 254 (2006).

"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; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (Internal quotation marks omitted.) Smith v. Commissioner of Correction, 89 Conn.App. 134, 139, 871 A.2d 1103, cert. denied, 275 Conn. 909, 882 A.2d 676 (2005).

"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.) Lewis v. Commissioner of Correction, 89 Conn.App. 850, 856, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005).

The petitioner claims that he should prevail on both prongs of the Strickland analysis. As to the first prong, he argues that Williams' performance was ineffective because he did not request an evidentiary hearing into alleged premature jury deliberations. We conclude that the petitioner has not demonstrated that Williams' performance was deficient and, therefore, we do not reach the second prong, which is whether his defense was prejudiced by the alleged deficiency.

In order to examine Williams' conduct under the circumstances, we begin by examining the law of premature juror deliberations. "It is undisputed that presubmission discussion of the evidence by jurors in any degree is not an acceptable practice and constitutes misconduct."⁹ State v. Newsome, 238 Conn. 588, 630, 682 A.2d 972 (1996). "Deliberation in this sense, however, means articulating and exchanging views, albeit preliminary, with one's fellow jurors.... It does not mean the absence of thought, however preliminary. We cannot expect jurors to be totally passive receptors of information who are not permitted even to think about what they have heard. A rule that rests on such a futile requirement ... would be a rule without foundation in reality. The trial court is expected to prevent premature deliberation, not harness the human mind." (Citation omitted; internal quotation marks omitted.) Spitzer v. Haims & Co., 217 Conn. 532, 545, 587 A.2d 105 (1991).

A finding of juror discussion prior to summation, therefore, does not automatically mean that the defendant is entitled to a new trial. See State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980). In State v. Castonguay, 194 Conn. 416, 436, 481 A.2d 56 (1984), our Supreme Court determined that the proper remedy in cases of premature jury deliberation is an evidentiary hearing to determine whether the defendant has been prejudiced by the juror misconduct. "[I]n cases where the trial court is directly implicated in juror misconduct, the state bears the burden of proving that misconduct was harmless error.... Where, however, the trial court was in no way responsible for the juror misconduct [our Supreme Court has] repeatedly held that a defendant who offers proof of juror misconduct bears the burden of proving that actual prejudice resulted from that misconduct."¹⁰ (Citations omitted; internal quotation marks omitted.) State v. Newsome, supra, 238 Conn. at 628, 682 A.2d 972.

With the relative burdens of proving prejudice from premature jury deliberations in mind, we turn to the petitioner's claim that Williams' performance was deficient because he did not request an evidentiary hearing. "In our review, we strongly presume that counsel's professional assistance was reasonable, and the petitioner has the burden to overcome the presumption that his attorney was employing sound trial strategy.... We evaluate the conduct from trial counsel's perspective at the time.... [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (...