Davila v. Commissioner of Correction

• Decision Date: 04 August 2009
• Docket Number: No. 29546.,29546.
• Citation: 116 Conn.App. 312,975 A.2d 118
• Court: Connecticut Court of Appeals
• Parties: Noel DAVILA v. COMMISSIONER OF CORRECTION.

975 A.2d 118

116 Conn.App. 312

Noel DAVILA v. COMMISSIONER OF CORRECTION.

No. 29546.

Appellate Court of Connecticut.

Argued April 21, 2009.

Decided August 4, 2009.

Michael Oh, special public defender, for the appellant (petitioner).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Gerard P. Eisenman, senior assistant state's attorney, for the appellee (respondent).

FLYNN, C.J., and LAVINE and HENNESSY, Js.

FLYNN, C.J.

The petitioner, Noel Davila, appeals from the judgment of the habeas court, Hon. Anthony V. DeMayo, judge trial referee, denying his third amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he was not denied the effective assistance of trial and appellate counsel when his attorneys failed to move to have the charges in the petitioner's second criminal trial dismissed on double jeopardy grounds and failed to present this claim in his direct appeal, respectively. We conclude that the petitioner's second trial, on charges that the jury could not agree on in his first trial, was a continuing prosecution and not a successive prosecution of the kind once barred by the now overruled State v. Lonergan, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990), overruled by State v. Alvarez, 257 Conn. 782, 794-95, 778 A.2d 938 (2001). We, therefore, affirm the judgment of the habeas court.

This court recounted the facts underlying the petitioner's appeal in our decision concerning his direct appeal. "Angela Velez, Julio Alvarez and five minor children resided in a first floor apartment at 203 Calhoun Avenue in Bridgeport. On the afternoon of May 1, 1999, the [petitioner], wearing a black, long sleeved, hooded sweatshirt, appeared at the back door of the victims' apartment and asked Velez if he could speak to Alvarez. Velez refused the [petitioner's] request because Alvarez was having lunch at that time. The [petitioner] then brandished a pistol and attempted to force his way into the apartment. Velez called out to Alvarez that somebody was trying to break into the apartment. Unsuccessful in his attempt to gain entry, the [petitioner] fired several gunshots into the apartment through various first floor windows. During the shooting, Velez gathered the five children together and fled the apartment, bringing the children to a nearby liquor store. The owner of the liquor store called the police, who arrived at the scene shortly thereafter.

"The [petitioner], meanwhile, fled on foot to his sister's apartment, which was not far from the scene of the shooting. Once at the apartment, the [petitioner] changed shirts and hid the pistol under the cushions of the living room sofa. Police apprehended the [petitioner] at the apartment, where they also recovered the weapon and the sweatshirt." State v. Davila, 75 Conn.App. 432, 435, 816 A.2d 673, cert. denied, 264 Conn. 909, 826 A.2d 180 (2003), cert. denied, 543 U.S. 897, 125 S.Ct. 92, 160 L.Ed.2d 166 (2004).

The petitioner was charged, in an amended substitute information filed February 4, 2000, with five counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21(1), and one count each of the following: reckless endangerment in the first degree in violation of General Statutes § 53a-63(a); criminal possession of a firearm in violation of General Statutes § 53a-217(a); carrying a pistol without a permit in violation of General Statutes § 29-35(a); attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-59 (a)(1); attempt to commit murder in violation of General Statutes §§ 53a-49(a)(2) and 53a-54a(a); and possession of narcotics in violation of General Statutes § 21a-279(a). Following a trial, on February 9, 2000, the jury found the petitioner guilty of possession of narcotics and not guilty of attempt to commit murder. The jury deadlocked on the remaining charges as to which the court, Hauser, J., declared a mistrial. The court sentenced the petitioner to a total effective term of five years in prison, to run consecutively to a five year sentence that the petitioner currently was serving for a violation of probation.

By way of an amended substitute information filed January 29, 2001, the state charged the petitioner with the same May 1, 1999 crimes on which the jury had deadlocked: five counts of risk of injury to a child, one count of reckless endangerment in the first degree, one count of criminal possession of a firearm, one count of carrying a pistol without a permit and one count of attempt to commit assault in the first degree. Prior to commencement of evidence in the second trial, the petitioner's trial counsel, Wayne Keeney, filed a motion in limine to preclude from the second trial facts that were litigated in the first trial pertaining to the charge of attempt to commit murder on the ground of collateral estoppel. Keeney specifically argued that the state should be prohibited from using such facts in support of its attempt to commit assault charge in the second trial. Following oral argument, the court, Hon. Howard T. Owens, Jr., judge trial referee, granted the motion and ordered that the prosecution would be "precluded from offering any evidence during its case-in-chief that the [petitioner] intended to kill the alleged victim." Four days later, Judge Owens reconsidered his ruling and denied the motion in limine. The court stated that in entering its order, it had been "unaware that at the first trial the [petitioner] had been tried on the charge of attempted assault in the first degree and that this charge resulted in a mistrial."

On January 30, 2001, after a second trial, the jury found the petitioner not guilty of attempt to commit assault in the first degree and guilty of the other charges against him. The court thereafter sentenced the petitioner to a total effective term of fifteen years in prison, with eight years of special parole, to run consecutively to the petitioner's previous sentences.

The petitioner filed separate appeals to this court from his convictions in both trials, and we ordered the appeals consolidated. See State v. Davila, supra, 75 Conn.App. at 434 n. 1, 816 A.2d 673. The petitioner, represented by attorney David B. Rozwaski, claimed on appeal that there was insufficient evidence to support his conviction of risk of injury to a child and reckless endangerment in the first degree. Id., at 434-35, 816 A.2d 673. The appeal also challenged the court's denial of his motion in limine prior to the second trial. Id., at 435, 816 A.2d 673.¹ We deemed the evidence sufficient to support the petitioner's conviction; id., at 436-40, 816 A.2d 673; but declined to review the petitioner's claim regarding the denial of his motion in limine, concluding that the issue was moot due to the fact that the petitioner had been acquitted in the second trial of the charge of attempt to commit assault in the first degree. Id., at 441, 816 A.2d 673.

On March 28, 2007, the petitioner filed a third amended petition for a writ of habeas corpus. The petition's first and second counts alleged ineffective assistance of counsel by Keeney and Rozwaski respectively, specifically citing their failure to brief and to argue a claim that the second prosecution placed the petitioner in double jeopardy due to the acquittal in the first trial of the charge of attempt to commit murder. Counts three and four alleged that the court improperly failed to find that the second prosecution was barred by operation of the fifth and fourteenth amendments to the United States constitution. In a memorandum of decision filed December 11, 2007, Judge DeMayo denied the petition. The court concluded that under State v. James, 247 Conn. 662, 725 A.2d 316 (1999) (en banc), the petitioner's retrial following the initial mistrial on the same charges did not violate his right not to be placed in double jeopardy. Therefore, the court found that the petitioner's trial and appellate counsel could not have provided ineffective assistance for their failure to raise the issue.² The court granted the petition for certification to appeal, and the present appeal followed.

On appeal, the petitioner challenges the habeas court's determination that he was not denied the effective assistance of counsel at either the trial or appellate level. His argument may be summarized as follows. Prior to our Supreme Court's ruling in State v. Lonergan, supra, 213 Conn. at 74, 566 A.2d 677, our courts applied the traditional double jeopardy analysis originally formulated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under Blockburger and its progeny, a second prosecution was barred by double jeopardy if the crime charged in the latter prosecution did not require proof of an element distinct from a charged crime for which the defendant previously had been put to trial and convicted or acquitted. See id., at 304, 52 S.Ct. 180. In Lonergan, our Supreme Court extended double jeopardy protection to encompass not only the "same elements" analysis of Blockburger, but also the "same conduct" test intimated by the United States Supreme Court in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).³ Under this analysis, in successive prosecution cases, "if the same evidence offered to prove a violation of the offense charged in the first prosecution is the sole evidence offered to prove an element of the offense charged in the second prosecution, then prosecution of the second offense is barred on double jeopardy grounds, regardless of whether either offense requires proof of a fact that the other does not." (Internal quotation marks omitted.) State v. Lonergan, supra, at 92, 566 A.2d 677.

In State v. Alvarez, 257 Conn. 782, 794-95, 778 A.2d 938...