Breton v. Comm'r of Corr.

• Citation: 325 Conn. 640,159 A.3d 1112
• Decision Date: 23 May 2017
• Docket Number: SC 19072
• Court: Supreme Court of Connecticut
• Parties: Robert BRETON v. COMMISSIONER OF CORRECTION

325 Conn. 640
159 A.3d 1112

Robert BRETON
v.
COMMISSIONER OF CORRECTION

SC 19072

Supreme Court of Connecticut.

Argued October 21, 2016
Officially released May 23, 2017

159 A.3d 1116

Victoria L. Steinberg, pro hac vice, with whom were Moira L. Buckley and, on the brief, William H. Kettlewell, pro hac vice, and Jason A. Casey, pro hac vice, for the appellant (petitioner).

Harry Weller, senior assistant state's attorney, with whom were Cynthia S. Serafini, senior assistant state's attorney, and, on the brief, Maureen Platt, state's attorney, and Michael Proto and Marcia Pillsbury, assistant state's attorneys, for the appellee (respondent).

Rogers, C. J., and Palmer, Eveleigh, McDonald and Robinson, Js.^*

McDONALD, J.

325 Conn. 644

The petitioner, Robert Breton, was found guilty of two counts of murder and one count of capital felony for the 1987 stabbing deaths of his former wife and his son, and was sentenced to death.¹ The petitioner thereafter filed a petition for a writ of habeas corpus, attacking both his conviction and his death sentence. This appeal ensued after the habeas court denied the petition. Subsequent events have rendered the petitioner's claims relating to his death sentence moot; see part II of this opinion; leaving for our consideration those challenging the judgment of conviction.

The principal issue in those remaining claims concerns defense counsel's obligation to investigate and present mitigating evidence that could reduce a defendant's culpability when the defendant has directed counsel not to present such evidence and has refused to aid in the presentation of such evidence. The petitioner claims, among other things, that his criminal trial counsel

325 Conn. 645

provided deficient representation by failing to investigate evidence that would have revealed that he suffered from post-traumatic stress disorder (PTSD) and methamphetamine intoxication at the time of the offenses, which in turn prejudiced him by depriving him of a meritorious mitigating defense strategy. Specifically, the petitioner points to counsel's failure to: (1) discover transcripts memorializing the petitioner's account of fatally stabbing his father in 1966; and (2) test the petitioner's blood sample drawn approximately forty hours after the crimes. The petitioner contends that, contrary to the habeas court's conclusions, his refusal to admit to the 1987 crimes and his instruction to counsel not to present an extreme emotional disturbance defense does not preclude relief because counsel had not adequately advised him of the evidence that was available due to their deficient investigation and they should not have acquiesced to the petitioner's uninformed decision.

159 A.3d 1117

We conclude that counsel must ensure that a defendant has made a knowing and voluntary decision not to present mitigating evidence. We further conclude that the habeas court properly denied the petition in the present case as to the claims related to this issue, as well as to the petitioner's other claims challenging his conviction.

I

CRIMINAL TRIAL

The underlying criminal proceedings were the subject of three previous appeals to this court. See State v. Breton , 212 Conn. 258, 259, 562 A.2d 1060 (1989) (Breton I ) (reversing trial court's decision dismissing aggravating factor of capital felony and remanding case with direction to proceed with penalty phase); State v. Breton , 235 Conn. 206, 260, 663 A.2d 1026 (1995) ( Breton II ) (affirming judgment of conviction but reversing judgment

325 Conn. 646

imposing death sentence—first penalty phase—and remanding for new penalty phase hearing); State v. Breton , 264 Conn. 327, 446, 824 A.2d 778 (Breton III ) (affirming judgment imposing death sentence in second penalty phase), cert. denied, 540 U.S. 1055, 124 S.Ct. 819, 157 L.Ed.2d 708 (2003). In Breton II , supra, at 212–14, 663 A.2d 1026, this court set forth the facts that the jury reasonably could have found at the guilt phase of the proceedings in support of the conviction. We briefly summarize the most salient of those facts, and supplement them with undisputed facts in the record regarding the circumstances leading to the present appeal.

Sometime before 4:30 a.m. on Sunday, December 13, 1987, the petitioner entered the town house apartment where his former wife, JoAnn Breton, and their fifteen year old son, Robert Breton, Jr., had resided since the couple's divorce in January, 1987. The petitioner was armed with a knife. He proceeded to JoAnn Breton's bedroom, where he viciously beat and stabbed her. Robert, Jr., came to the bedroom in response to his mother's cries, but fled when the petitioner turned the attack on him. The petitioner pursued Robert, Jr., to the bottom of the staircase on the first floor, where the attack resumed. Both Robert, Jr., and JoAnn Breton sustained multiple knife wounds to the face, chest and neck. Each bled to death from a knife wound severing the carotid artery.

The petitioner left the apartment and, at some point thereafter, drove to a nearby reservoir. Later Sunday morning, he called someone to pick him up at the reservoir because his truck had gotten stuck. Sunday evening, he went to work. He made arrangements with Domenic Aurigemma, a friend and coworker, to retrieve the truck the next day. When the men met on Monday morning, December 14, the petitioner asked Aurigemma to first drive him over to JoAnn Breton's apartment because he had repeatedly gotten a busy signal when

325 Conn. 647

he telephoned her over the weekend. Upon their arrival, the petitioner went to the apartment door but then returned to alert Aurigemma that he thought that there was blood on the doorknob. They then called the police.

After the police arrived, obtained entry to the apartment, and discovered the bodies, they interviewed the petitioner. They noticed that the petitioner's hand was bandaged, with blood around the wound. An investigation that same day yielded evidence inculpating the petitioner. One witness reported hearing screams and then seeing the petitioner leave the apartment at approximately 4:30 a.m. on December 13. That same witness also reported having been told by Robert, Jr., that the petitioner had threatened to kill JoAnn Breton. The petitioner was arrested at approximately 8 p.m. on Monday,

159 A.3d 1118

December 14, 1987. A search warrant executed at the petitioner's apartment yielded a pair of recently washed sneakers, still wet, that matched bloody footprints in the apartment. At approximately 9 p.m. on December 14, the police executed a search warrant that compelled the petitioner to submit to the drawing of a blood sample. The state never tested that blood sample to match it to blood at the scene. Instead, a second sample was drawn and tested by the state in March, 1989, by agreement of the parties, after defense counsel moved to suppress the first sample on the ground that the warrant affidavit contained false statements attributed to the petitioner.

Approximately one month before jury selection was to commence, defense counsel requested that the court order a competency evaluation of the petitioner due to concerns arising from their conversations with him. The trial court, Heiman, J., ordered an independent evaluation by a team of clinicians, who later reported to the court that the petitioner understood the proceedings against him and was able to assist in his defense.

325 Conn. 648

While jury selection was in progress, defense counsel raised further concerns to the court when responding to the deadline for giving notice as to whether they would be presenting any expert testimony during the guilt phase in support of defenses relating to the petitioner's mental state. See Practice Book § 40–18. Counsel informed the court that they believed that there was important evidence related to the petitioner's mental state that could provide the jury with a basis to convict the petitioner of the lesser offense of manslaughter. Nevertheless, the petitioner had told counsel that he did not want them to present a defense of extreme emotional disturbance.² Counsel explained that they believed that they must acquiesce to the petitioner's wishes but asked the court to confirm the petitioner's position. The trial court then engaged in a colloquy with the petitioner to confirm that he understood that evidence of extreme emotional disturbance could reduce his culpability from murder to manslaughter, but that he had nonetheless instructed his counsel not to file "any notices of claims of extreme emotional disturbance" and, additionally, that he had instructed them not to produce "any psychiatric evidence" at the guilt phase of trial. After receiving that confirmation, the court found the petitioner competent to make this

325 Conn. 649

decision. The court informed the petitioner that such a defense still might be presented if he later changed...