Evans v. Warden

• Decision Date: 18 January 2018
• Docket Number: CV164007657S
• Court: Connecticut Superior Court
• Parties: James EVANS #111802 v. WARDEN

James EVANS #111802 v. WARDEN

No. CV164007657S

Superior Court of Connecticut, Judicial District of Tolland, Somers, Geographic Area 19

January 18, 2018

UNPUBLISHED OPINION

OPINION

Kwak J., Superior Court Judge

The petitioner initiated the present matter by way of a pro se petition for a writ of habeas corpus filed on November 13 2015, and amended by assigned counsel on November 29, 2016. The amended petition challenges the petitioner’s convictions for kidnapping in two separate cases. In count one, the petitioner challenges his conviction in docket number CR94-0163159-T, judicial district of New Haven, for kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(B) (" 159 case" ). In count two, the petitioner challenges his conviction in docket number CR94-0163160-T, judicial district of New Haven, for kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(B) (" 160 case" ). The petitioner’s claims in both counts allege violations of State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), and its progeny. As relief, the petitioner seeks an order from the habeas court vacating the two kidnapping convictions, as well as such other and further relief as law and justice require. The respondent’s return denies the petitioner’s two kidnapping convictions violate Salamon and that he is not entitled to have them vacated by the habeas court.

On March 3, 2017, both parties filed motions for summary judgment. The petitioner’s motion for summary judgment argues that he is entitled to judgment granting the claims in both counts. The respondent’s motion for summary judgment argues that judgment must enter denying the amended petition’s counts. Both parties filed a memorandum of law in support of their respective motions. The petitioner and the respondent acknowledge that there are no material issues of fact in dispute and that the habeas court only needs to apply the law to the undisputed facts of the case. On September 20, 2017 the parties appeared before the court for a hearing on the cross motions for summary judgment. Copies of relevant criminal trial transcripts were provided in electronic format and were made a court exhibit.

For the reasons articulated more fully below, the petitioner’s motion for summary judgment is granted and the respondent’s motion for summary judgment is denied.

DISCUSSION

I. Summary Judgment Standard

" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." Rogers v. Commissioner of Correction, 143 Conn.App. 206, 210, 70 A.3d 1068 (2013), citing and quoting Bridgeport v. White Eagle’s Society of Brotherly Help, Inc., 140 Conn.App. 663, 667-68, 59 A.3d 859 (2013).

" Although decisional law suggests that a habeas petitioner is entitled to present evidence on new claims; see Mitchell v. Commissioner of Correction, 93 Conn.App. 719, 725-26, 891 A.2d 25, cert. denied, 278 Conn. 902, 896 A.2d 104 (2006)[,] ... that general proposition cannot be interpreted reasonably as meaning that the court must afford a petitioner an evidentiary hearing when the record plainly shows no genuine issue of material fact and the application of the law requires no evidentiary exposition. To conclude otherwise would be to eviscerate Practice Book § 23-37,^[1] which, as noted, provides that the habeas court may grant summary judgment upon its determination that no genuine issue of material fact exists so as to entitle the petitioner to a trial ..." (Footnote omitted.) Lawrence v. Commissioner of Correction, 125 Conn.App. 759, 762, 9 A.2d 772 (2010), cert. denied, 300 Conn. 936, 17 A.3d 474 (2011) (affirming granting of summary judgment where petitioner could not show prejudice in a claim of ineffective assistance of counsel).

" A material fact is a fact that will make a difference in the result of the case ... The facts at issue are those alleged in the pleadings ... The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The test is whether a party would be entitled to a directed verdict on the same facts ... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff’s claim and involves no triable issue of fact.’ (Citations omitted; internal quotation marks omitted.) Lunn v. Cummings & Lockwood, 56 Conn.App. 363, 370, 743 A.2d 653 (2000)." Washington v. Blackmore, 119 Conn.App. 218, 220-21, 986 A.2d 356 (2010).

II. Underlying Facts Not in Dispute

The petitioner was charged with various offenses in three different docket numbers. However, only, the kidnapping offenses in the 159 and 160 cases are at issue in the present matter. The petitioner unsuccessfully appealed from the judgments of conviction. State v. Evans, 44 Conn.App. 307, 689 A.2d 494, cert. denied, 240 Conn. 924, 692 A.2d 819 (1997).

" The convictions stemmed from charges arising out of three cases involving different incidents and different victims, which cases were consolidated for trial. Each case related to one set of facts. In the first case [160 case], the jury found the [petitioner] guilty of burglary in the third degree in violation of § 53a-103(a), kidnapping in the first degree in violation of § 53a-92(a)(2)(B), and robbery in the third degree in violation of § 53a-136(a). In the second case [159 case], the jury found the [petitioner] guilty of burglary in the first degree in violation of § 53a-101(a)(2), kidnapping in the first degree in violation of 53a-92(a)(2)(B), assault in the second degree in violation of § 53a-60(a)(2), and robbery in the third degree in violation of § 53a-136(a). In the third case, the jury found the [petitioner] not guilty of burglary in the first degree in violation of § 53a-101(a)(2), but guilty of the lesser included offense of burglary in the third degree and guilty of assault of a victim sixty or older in the second degree in violation of § 53a-60b(a), and robbery in the third degree in violation of § 53a-136(a)." Id., 309.

The Appellate Court’s decision summarizes the facts as reasonably found by the jury. " In the first case [160 case], at about 4:30 p.m. on July 20, 1994, the [petitioner] entered the premises at 5 Mueller Drive in Hamden. The female occupant was upstairs taking a shower and two female guests, Michelle Onofrio and Gina Jurado, were in the downstairs bedroom when the [petitioner] entered the bedroom and demanded money. When both young women denied having any money, the [petitioner] grabbed one of them and forced her to unscrew the wires to the videocassette recorder (VCR) and Nintendo game in the bedroom. The [petitioner] demanded that they accompany him and pushed them upstairs to another bedroom, where he took jewelry. The [petitioner] then went downstairs to the living room where he took another VCR. Finally, the [petitioner] gathered the items he had taken in the kitchen and left the premises with the items. The two women ran to the bathroom and informed the occupant of what had transpired, and the police were notified.

" In the second case [159 case], at about 6 p.m. on August 24 1994, the victim was alone in her home at 559 Woodin Street in Hamden, when the [petitioner] came to her door and stated that the victim’s husband had hired him to do some work on the premises. Realizing that the story was fictitious, she immediately closed and bolted the door, ran to the kitchen telephone and dialed 911. Meanwhile, the [petitioner] ran around to the kitchen door, kicked it in, entered the home and tried to wrestle the telephone from her hand. When she would not relinquish it, he bit her hand and punched her in the face. While she continued to clutch the receiver, he ripped the telephone base from the wall and hit her in the eye, face and left shoulder with it. He then knocked her to the floor and continued to beat her. As she struggled to get away, he knocked her to the floor again and choked her. She managed to elude him and ran for the telephone in the family room. The [petitioner] threatened her with bodily harm and ordered her to stop screaming. He knocked the telephone to the floor, dragged her back through the kitchen into the living room and out the front door, then released her and ran away with her pocketbook. When the Hamden police arrived, the victim described her assailant, particularly noting that he had distinctive front teeth, which were ‘chipped, almost evenly, so that it looks almost like a triangle.’

" A week after the incident, the victim identified the [petitioner’s] photograph from an array of eight black and white photographs at the Hamden police station. She asked if any color photographs were available and was taken to the New Haven police station, where she was shown four color photographs of the [petitioner] taken at different times. She identified the fourth photograph, but failed to...