Collins v. Comm'r of Corr.

• Decision Date: 23 February 2021
• Docket Number: AC 42785
• Citation: 246 A.3d 1047,202 Conn.App. 789
• Court: Connecticut Court of Appeals
• Parties: Rogeau R. COLLINS v. COMMISSIONER OF CORRECTION

202 Conn.App. 789

246 A.3d 1047

Rogeau R. COLLINS

v.COMMISSIONER OF CORRECTION

AC 42785

Appellate Court of Connecticut.

Argued October 13, 2020

Officially released February 23, 2021

Jennifer B. Smith, for the appellant (petitioner).

Timothy F. Costello, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, former state's attorney, and Tamara Grosso, assistant state's attorney, for the appellee (respondent).

Lavine, Suarez and Devlin, Js.^*

DEVLIN, J.

The petitioner, Rogeau R. Collins, appeals from the judgment of the habeas court, Kwak, J. , denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) determined that his conflict of interest claim was procedurally defaulted and that, in any event, his trial counsel did not have a conflict of interest and (2) denied his ineffective assistance of counsel claim. We affirm the judgment of the habeas court.

The following recitation of facts was set forth by this court in the petitioner's direct appeal from his conviction. "In March, 2009, Robert Dixon, the victim, resided in Hartford with his girlfriend. Dixon always carried two cell phones. He used one cell phone to sell drugs and the other for personal matters. In addition, he always wore an expensive pair of Cartier glasses. He did not store the drugs he sold at his home, but kept them at a remote location secured in a safe. The key to the safe was on the same key ring as Dixon's car keys.

"On March 9, 2009, Dixon exchanged several phone calls with an individual named Adrian Dean, a friend of the [petitioner]. At approximately 9:25 p.m. that night, Dixon left his residence in his vehicle carrying both of his cell phones and wearing his Cartier glasses. Sometime thereafter, Dean joined Dixon in the vehicle. Dean then contacted the [petitioner], who was driving around the Hartford area in his girlfriend's vehicle. Dean arranged to meet the [petitioner] at a location in Bloom-field and gave the [petitioner] directions to that location. The [petitioner] followed Dean's directions and arrived at the location at approximately the same time as Dean and Dixon. Dixon and the [petitioner] then drove their vehicles toward a cul-de-sac at the end of the road. Dixon turned his vehicle in the cul-de-sac and came to a stop. The [petitioner] pulled up and stopped his vehicle to the left of Dixon's vehicle. The [petitioner] then exited his vehicle. Both the [petitioner] and Dean, who had exited Dixon's vehicle, approached the driver's side door of Dixon's vehicle. Dixon was still sitting in the driver's seat of his vehicle. Dean, with a firearm in one of his hands, opened the driver's side door of Dixon's vehicle and shot Dixon in the head. Dean then asked the [petitioner] to search Dixon's pockets. The [petitioner] began patting Dixon's pockets when Dixon flinched and attempted to escape the vehicle through the passenger side door. Dixon was shot seven times as he attempted to escape and died as a result of the multiple gunshot wounds. The [petitioner] and Dean then left the scene in the [petitioner's] vehicle. The following morning, on March 10, 2009, Dixon was found dead by two fishermen. Dixon's two cell phones, Cartier glasses, and keys were not found at the scene. The [petitioner] was arrested on March 24, 2009.

"The state, in a long form information filed on January 11, 2011, charged the [petitioner] with murder in violation of General Statutes § 53a-54a (a), felony murder in violation of [General Statutes] § 53a-54c, conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), robbery in the first degree in violation of [General Statutes] § 53a-134 (a) (2), and conspiracy to commit robbery in the first degree in violation of §§ 53a-48 (a) and 53a-134 (a) (2). The jury found the [petitioner] guilty of felony murder and robbery in the first degree, but not guilty [of] each of the remaining charges. The court sentenced the [petitioner] to a total effective term of forty-five years of imprisonment." State v. Collins , 147 Conn. App. 584, 586–88, 82 A.3d 1208, cert. denied, 311 Conn. 929, 86 A.3d 1057 (2014). This court affirmed the trial court's judgment on appeal. Id., at 598, 82 A.3d 1208.

On March 23, 2015, the self-represented petitioner filed a petition for a writ of habeas corpus. The petitioner filed an amended petition with the assistance of counsel on February 14, 2018, which was again amended on April 10, 2018. The second amended petition contained four counts, only two of which are relevant to this appeal.¹ In the first count, the petitioner alleged that his trial counsel, Aaron Romano, had a conflict of interest and, thus, rendered ineffective assistance. In the second count, the petitioner alleged that Romano was ineffective for failing to investigate and present a potentially exculpatory witness to the robbery, Teara Rosario, and that such failure materially prejudiced the petitioner's case.²

A trial on the habeas petition was held on June 8 and 12, 2018. On December 28, 2018, the habeas court issued a memorandum of decision in which it denied each of the petitioner's claims. Specifically, as to the first count, the court concluded that the petitioner's conflict of interest claim was procedurally defaulted and that, even if it were not, the petitioner had failed to demonstrate that Romano had a conflict of interest. As to the second count, the court agreed with the petitioner that Romano was ineffective in not investigating the potentially exculpatory witness but also found that "it would be too speculative to assess whether the absence of [the witness’] testimony at the criminal trial inured to the petitioner's prejudice." Thereafter, the petitioner filed a petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. The habeas court granted the petition for certification to appeal. Additional facts will be set forth as necessary.

Before we turn to the petitioner's claims, we briefly set forth our standard of review for habeas corpus appeals. "The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. ... Historical facts constitute a recital of external events and the credibility of their narrators. ... Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. ... The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction , 306 Conn. 664, 677, 51 A.3d 948 (2012).

I

The petitioner first claims that the habeas court erred in concluding that his conflict of interest claim was procedurally defaulted and that, even if it were not, Romano did not have an actual conflict of interest that rendered his representation ineffective. Although we agree that the petitioner's claim was not procedurally defaulted, we also agree with the habeas court's conclusion that Romano did not have a conflict of interest.

The following additional facts are relevant to our resolution of this claim. After he was arrested, the petitioner was found to be indigent and initially a special public defender was appointed for him. The petitioner's family retained Romano on February 27, 2010, to represent the petitioner in lieu of a special public defender. The petitioner's father signed a representation agreement, agreeing to pay Romano a retainer of $25,000, which included the trial fee, should the case proceed to trial. The father also agreed that, "[i]f in the opinion of [counsel], the services of experts or private investigators or the acquisition of medical, police, or other investigatory reports are necessary in defending [the petitioner] in the abovementioned matter, I agree to pay the additional costs and fees that may arise as a result of securing these services."

On March 10, 2010, Romano filed a motion for expenses pursuant to Ake v. Oklahoma, 470 U.S. 68, 87, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985),³ arguing that the petitioner was indigent and that state funding of expert witnesses was necessary in order to provide effective assistance of counsel. Specifically, Romano claimed that he needed a ballistics expert to challenge the state's firearms expert, a cell phone expert to challenge the state's cell phone expert, a psychologist or psychiatrist to opine on the voluntariness of the petitioner's statements, and an independent medical examiner to determine the trajectory of the bullets. The court, Mullarkey, J. , conducted an evidentiary hearing over the course of three days. Ultimately, the court denied the request for expenses, concluding that Romano had failed to make a sufficiently particularized showing of need for the experts and that the petitioner's indigency was voluntary.⁴ The court explained that, because the petitioner's family had decided to retain and pay Romano, the petitioner was voluntarily indigent. The court recommended that Romano pay for experts to review the case using funds he already had received and consult with the state's experts, such as the state medical examiner, before deciding if independent experts were necessary. Additionally, before adjourning, the court specifically instructed the petitioner that "the state will pay for all experts that the Chief Public Defender's office determines are necessary if you're represented by the public defender."

Prior to trial, on January 19, 2011, Romano filed an amended motion for expenses, arguing again that the petitioner was indigent and that experts were absolutely necessary to his defense. After a hearing on the motion held on February 8, 2011, the court, Espinosa, J. , denied the motion, finding that "[t]he [petitioner] had...