Camacho v. Comm'r of Corr.

• Decision Date: 04 March 2014
• Docket Number: No. 34678.,34678.
• Citation: 84 A.3d 1246,148 Conn.App. 488
• Court: Connecticut Court of Appeals
• Parties: Marco CAMACHO v. COMMISSIONER OF CORRECTION.

148 Conn.App. 488

84 A.3d 1246

Marco CAMACHO

v.COMMISSIONER OF CORRECTION.

No. 34678.

Appellate Court of Connecticut.

Argued Dec. 6, 2013.

Decided March 4, 2014.

Joseph Visone, assigned counsel, for the appellant (petitioner).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Angela R. Macchiarulo, senior assistant state's attorney, for the appellee (respondent).

ROBINSON, SHELDON and BISHOP,

Js.^*

BISHOP, J.

The petitioner, Marco Camacho, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court erred in finding that his appellate counsel did not render ineffective assistance by failing to challenge the propriety of: (1) the admission, at trial, of a 911 tape recording from the victim; and (2) reference made by the prosecutor at trial to the petitioner's nickname, “Killer.” We affirm the judgment of the habeas court.

The petitioner was charged with and, following a jury trial, convicted of four counts of murder in violation of General Statutes § 53a–54a, four counts of felony murder in violation of General Statutes § 53a–54c, one count of tampering with evidence in violation of General Statutes § 53a–155, one count of larceny in the first degree in violation of General Statutes § 53a–122 (a)(3), one count of robbery in the first degree in violation of General Statutes § 53a–134 (a)(1), one count of possession of narcotics with intent to sell in violation of General Statutes § 21a–277 (a), one count of possession of a stolen firearm in violation of General Statutes § 53a–212, and one count of conspiracy to commit the crimes of murder, possession of narcotics with intent to sell, robbery in the first degree, larceny in the first degree, and tampering with evidence in violation of General Statutes §§ 53a–48, 53a–54a (b), 21a–277 (a), 53a–134 (a)(1), 53a–122 (a)(3), and 53a–155, respectively. Following the conviction, the trial court sentenced the petitioner to a total effective term of 260 years imprisonment. The petitioner unsuccessfully appealed from his conviction. State v. Camacho, 282 Conn. 328, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S.Ct. 388, 169 L.Ed.2d 273 (2007).

The facts set out by the court in Camacho provide the evidentiary backdrop for the issues before us. “At approximately 8:30 p.m., on September 25, 1996, a Southington police department emergency dispatcher received a 911 call from 932 Shuttle Meadow Road, the residence of Nick Votino. Responding to the call, the police discovered four persons dead from gunshot wounds in the master bedroom: Nick Votino,¹ his daughter, Joanne Votino, Lynn Suszynski and Wayne Barrows.

“Police found evidence of recent cocaine use at the crime scene, and Votino, Suszynski and Barrows all tested positive for cocaine in toxicology tests performed in conjunction with their autopsies. Police also found crack cocaine, drug paraphernalia and a large quantity of a cutting agent used in the process of making crack cocaine.

“Weeks before the murders, in the beginning of September, 1996, the [petitioner] and Eric Henry, with whom the [petitioner] sold drugs, were living in the Southington home of Henry's girlfriend, Raquel Martin.... The [petitioner] and Henry had been using Martin's residence as the base of operations to sell crack cocaine. Previously, the [petitioner] had been supplying Henry with drugs to sell, and had moved into Martin's house in order to facilitate his drug dealing business. The [petitioner] and Henry became partners, with the [petitioner] supplying the drugs and Henry supplying protection as well as expanding the [petitioner's] market with his own group of acquaintances. Additionally, Votino had been selling drugs for the [petitioner]. As a result of his own drug habit, Votino had become indebted to the [petitioner] in the amount of $400. The [petitioner] had taken a necklace belonging to Votino as collateral on the debt....

“[On September 25, 1996, at] approximately 4:30 p.m., Martin drove the [petitioner] and Henry to Votino's house because the [petitioner] wanted to discuss the debt that Votino owed him. Martin, who waited in the living room while the [petitioner], Henry and Votino spoke in the kitchen, overheard Votino say that he had $200 worth of crack cocaine left to sell, but would need more to sell in order to pay off his debt to the [petitioner].... The [petitioner] told Votino that he would come back later that night with more drugs for Votino to sell, and warned that Votino had better be home and have sold some of the drugs he already had before the [petitioner] returned.

“Thereafter, Martin drove the [petitioner] and Henry to the [petitioner's] mother's house in New Britain where the [petitioner] picked up some clothing in a black backpack. When they returned to Martin's house, the [petitioner] paged his drug supplier, Pedro Ramirez, and he and Henry went to meet him. The [petitioner] purchased crack cocaine from Ramirez and told Ramirez he was about to ‘stick somebody up,’ which Ramirez took to mean that the [petitioner] intended to rob someone.

“After the [petitioner] and Henry had returned to Martin's house, the [petitioner] entered Martin's bedroom with a gun in a small black pouch, gloves and bullets. The [petitioner] then put the bullets in the gun, wiped down the gun and put it back into the pouch. Henry took the gun from the [petitioner] and put it in the waistband of his pants. The [petitioner] and Henry then left in Martin's car for Votino's house.

“Approximately one-half hour after they had left Martin's house, Henry telephoned Martin from Votino's bedroom and told her that he and the [petitioner] would be returning to her house shortly. Martin heard sounds of a party-like atmosphere and Votino's voice in the background. At the same time, unbeknownst to the [petitioner] and Henry, Joanne Votino was in her bedroom speaking on the telephone to her boyfriend, Demond Johnson. Johnson heard four or five loud noises that he thought sounded like gunshots, followed by Joanne Votino yelling, ‘[w]hat's going on,’ and banging on the door to the master bedroom. Johnson then heard Joanne Votino scream, ‘[o]h my God,’ followed by a loud thump as she fell to the ground, as a result of being shot. Joanne Votino screamed Johnson's name and told him to call 911, which he did....

“Although he had fled the state, the [petitioner] stayed in contact with a number of people in Connecticut, trying to determine how much the police knew and how to cover his tracks.... On Tuesday, October 1, 1996, the [petitioner] surrendered to police at his aunt's house in Beaufort, South Carolina, where he had fled....” (Footnote omitted.) Id., at 333–41, 924 A.2d 99.

The petitioner filed a petition for a writ of habeas corpus on July 10, 2007. In the amended petition dated August 16, 2011, the petitioner alleged: (1) in count one, that his constitutional right to a public trial was violated; (2) in count two, that his constitutional right to be present during the trial was violated; (3) in count three, that his constitutional right to an impartial jury was violated; (4) in count four, that his constitutional right to confrontation was violated; (5) in count five, that his constitutional rights to due processand a fair trial were violated; (6) in count six, that his constitutional right to the effective assistance of trial counsel was violated; and (7) in count seven, that his constitutional right to the effective assistance of appellate counsel was violated. The respondent, the Commissioner of Correction, filed a return on August 17, 2011, generally denying the allegations in the petition and raising the special defenses of procedural default and res judicata as to counts one through five. On September 9, 2011, the respondent filed a motion to dismiss counts one, two, and three on the ground of procedural default, and counts four and five on the ground of res judicata or, alternatively, procedural default. In response, the court dismissed counts one through three on the ground of procedural default, and count four on the ground of res judicata. The court did not, however, dismiss count five, as it found neither res judicata nor procedural default to apply given the allegations in the petition. Camacho v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–07–4001839 (October 24, 2011). The matter was tried to the court, Newson, J., on the remaining three counts on September 12, 14, and 23, 2011, and January 5, 2012. On April 30, 2012, the court denied the petition for a writ of habeas corpus. The petitioner filed a petition for certification to appeal on May 7, 2012, which was granted by the court. Because the petitioner appeals only from the court's denial of his claims as they relate to appellate counsel, we confine our review to the claims set forth in the seventh count. Additional facts will be set forth as necessary.

As noted, the petitioner contends that the court erred in finding that appellate counsel did not render ineffective assistance by failing to argue that the petitioner's due process rights were violated by: (1) the admission at trial of a 911 tape recording of the victim's call for assistance; and (2) reference by the prosecutor at trial to the petitioner as “Killer.”

We first address decisional law that is applicable to the issues presented for review and the standard that sets the contours of our assessment on review. “In Strickland v. Washington, 466 U.S. 668, 671, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated a two part analysis for evaluating constitutional claims of ineffective assistance of counsel. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment....