Correia v. Rowland

• Decision Date: 06 May 2003
• Docket Number: (SC 16865).
• Citation: 820 A.2d 1009,263 Conn. 453
• Court: Connecticut Supreme Court
• Parties: STEVEN CORREIA v. JOHN G. ROWLAND ET AL.

263 Conn. 453

820 A.2d 1009

STEVEN CORREIA v. JOHN G. ROWLAND ET AL.

(SC 16865).

Supreme Court of Connecticut.

Argued February 19, 2003.

Officially released May 6, 2003.

Sullivan, C. J., and Borden, Norcott, Palmer and Zarella, Js. Francis T. Mandanici, assistant public defender, for the appellant (petitioner).

Nancy L. Chupak, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Linda Howe, senior assistant state's attorney, for the appellees (respondents).

Opinion

NORCOTT, J.

The principal issue in this appeal is whether the habeas court properly concluded that the petitioner did not have cause for his failure to raise, at his trial and on direct appeal, a claim that his right to due process of law under article first, § 8, of the constitution of Connecticut¹ was violated by the state's failure to preserve potentially useful evidence. The petitioner, Steven Correia, appeals² from the judgment of the habeas court denying his petition for a writ of habeas corpus.³ In this appeal, the petitioner contends that the habeas court improperly: (1) concluded that the petitioner did not have legally sufficient cause for failing to raise the unpreserved evidence issue at trial or on direct appeal, and that the petitioner did not establish that he was prejudiced by the lost evidence; (2) applied a double standard in determining whether the respondent had cause to amend his return; (3) concluded that the petitioner did not prove, by clear and convincing evidence, that he was actually innocent; and (4) excluded the testimony of the petitioner's expert witnesses at the habeas corpus hearing. We affirm the judgment of the habeas court.

The record reveals the following facts and procedural history. The petitioner was charged with sexual assault in the first degree in violation of General Statutes (Rev. to 1981) § 53a-70 (a), two counts of kidnapping in the first degree in violation of General Statutes (Rev. to 1981) § 53a-92 (a) (2) (A) and (B), and robbery in the first degree in violation of General Statutes (Rev. to 1981) § 53a-134 (a) (4). After a jury trial before the court, O'Keefe, J., the petitioner was convicted of all charges, and was sentenced to forty-five years imprisonment.

The petitioner was convicted of charges that arose out of a sexual assault and robbery that had occurred in New Haven in November, 1981.⁴ After the assault, the victim went to the Hospital of Saint Raphael (hospital) for medical evaluation and treatment. At the hospital, the victim's clothes were confiscated, and medical personnel utilized a rape crime kit to examine her body for evidence.⁵ One of the purposes of a rape crime kit is to aid in the ultimate identification of the perpetrator. Ann Marie Conneley, the nurse who examined the victim at the hospital, testified at the petitioner's 1992 trial that, upon microscopic examination by the on-duty physician, the cervical smear taken as part of the rape crime kit revealed the presence of multiple motile spermatozoa.

Joel Milzoff, chief toxicologist at the state crime laboratory (state lab), testified at the petitioner's trial that the state lab had received the rape crime kit from the New Haven police on November 23, 1981, approximately five days after the attack. Milzoff testified that all of the materials submitted with the rape crime kit were returned to the New Haven police in November, 1982, upon their request because "the case was disposed of"; he also testified that his file indicated that the victim wanted her clothing returned. Milzoff further testified that there was no analysis or report generated about any testing of the rape crime kit materials; some partial testing had been performed on the clothing, but it was never completed. He also testified that the rape crime kit materials remained, in effect, untested by the state lab.⁶ The record indicates that, by the time of the petitioner's trial, all of the rape crime kit materials were lost; indeed, the petitioner's blood also had never been tested by the state.

The petitioner was subsequently convicted of all counts on the basis of identification testimony by the victim and her roommate on the night the victim was assaulted. See footnote 4 of this opinion. The petitioner appealed from that judgment to the Appellate Court, which affirmed the convictions. State v. Correia, 33 Conn. App. 457, 458, 636 A.2d 860 (1994).⁷ This court denied the petitioner's petition for certification to appeal from the Appellate Court's decision. State v. Correia, 229 Conn. 911, 642 A.2d 1208, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994). The petitioner did not raise the issue of the missing evidence at his trial, or on his direct appeal.

Subsequently, the petitioner filed a petition for a writ of habeas corpus in the United States District Court for the District of Connecticut, which was denied. The United States Court of Appeals for the Second Circuit affirmed the District Court's denial of the petition, and the United States Supreme Court again denied the petitioner's petition for certiorari. Correia v. Meachum, 201 F.3d 430 (2d Cir. 1999), cert. denied, 529 U.S. 1111, 120 S. Ct. 1965, 146 L. Ed. 2d 797 (2000).

In January, 2001, the petitioner brought the present petition for a writ of habeas corpus, claiming that his right to due process of law under article first, § 8, of the constitution of Connecticut was violated because the state had failed to preserve the collected, but untested, samples in the rape crime kit that had been taken from the victim at the hospital immediately after the attack. The petitioner contended that he did not raise this issue at trial, or on direct appeal, because at that time, this court's decisions in State v. Brosnan, 221 Conn. 788, 811-13, 608 A.2d 49 (1992), and State v. Genotti, 220 Conn. 796, 811-12, 601 A.2d 1013 (1992), had followed the United States Supreme Court's ruling in Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), which held that in order to establish a violation of due process rights under the federal constitution, a criminal defendant must prove that the state acted in bad faith in failing to preserve potentially useful evidence. In further support of his claim, the petitioner cited this court's cases stating that the due process clauses of the United States and Connecticut constitutions have the same meaning, and impose similar limitations.⁸ The petitioner admitted that he could not prove bad faith on the part of the state in failing to preserve the rape crime kit and the victim's clothing. He then contended that his due process rights had been violated under this court's decision in State v. Morales, 232 Conn. 707, 719-20, 657 A.2d 585 (1995), which was decided after his direct appeals had concluded. In Morales, this court, as a matter of state constitutional law, explicitly rejected the federal bad faith requirement in favor of a balancing test. Id. The petitioner alleged that he was prejudiced by the loss of the rape crime kit because, had it not been lost, it could have been tested, and such testing would have demonstrated that the petitioner was not the assailant. Accordingly, the petitioner also raised a claim of actual innocence. He therefore requested that the habeas court vacate his convictions.

In response, the respondent denied that the rape crime kit was still testable, and therefore potentially useful, at the time of trial — ten years after that evidence originally had been submitted by the victim. The respondent also raised, pursuant to Practice Book § 23-30 (b),⁹ a defense of procedural default. Citing Johnson v. Commissioner of Correction, 218 Conn. 403, 412-13, 589 A.2d 1214 (1991), and Jackson v. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d 413 (1993), the respondent contended that the petitioner had not established cause for failing to raise his state constitutional claim at trial, and that he was not prejudiced at trial by the alleged violation of his right to due process.¹⁰

The habeas court, Hon. Howard F. Zoarski, judge trial referee, concluded that the petitioner did not prove cause for his failure to raise his state constitutional claims at trial. In its memorandum of decision, the court reasoned that the balancing test of State v. Morales, supra, 232 Conn. 719-20, was based on case law existing at the time of the petitioner's trial, namely, State v. Asherman, 193 Conn. 695, 724-25, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). Accordingly, in the view of the habeas court, "it did not create any new or novel law to excuse the petitioner from raising a constitutional issue reasonabl[y] unknown to him at the time of trial." The habeas court also concluded that the petitioner had failed to demonstrate that he was prejudiced by the loss of the rape crime kit, noting that "[s]peculation by the petitioner regarding the results of tests if the evidence had not been lost is not a substitute for reasonable probability" that the proceeding would have been different. That court also rejected the petitioner's actual innocence claim, concluding that the petitioner had failed to prove his actual innocence by clear and convincing evidence. Accordingly, the habeas court denied the petition. This appeal followed.

I CAUSE AND PREJUDICE ANALYSIS

The petitioner first claims that, in light of the analysis articulated in this court's 1995 decision in State v. Morales, supra, 232 Conn. 719-20, the habeas court improperly concluded that he did not establish sufficient cause for failing to raise, at trial or on direct appeal, the issue of whether the state's failure to preserve the evidence in the rape crime kit violated his state due process rights. Specifically, the petitioner contends that he had cause for failing to raise the issue at trial or on direct appeal in 1992 because, at that time, there was no...