Friend v. Commissioner of Correction

• Decision Date: 24 January 2018
• Docket Number: CV164069960S
• Court: Superior Court of Connecticut
• Parties: Philip FRIEND v. COMMISSIONER OF CORRECTION

Philip FRIEND v. COMMISSIONER OF CORRECTION

No. CV164069960S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

January 24, 2018

UNPUBLISHED OPINION

MEMORANDUM OF DECISION ^[1]

Wilson, J.

The petitioner, Philip Friend, initiated this petition for a writ of habeas corpus. The initial petition was filed on August 2 2016, which sets forth numerous claims. On April 6, 2017, the petitioner filed an amended petition which narrowed the number of claims originally alleged in the initial petition to the following claims. Claim one alleges a violation of the petitioner’s right to effective assistance of counsel because trial counsel failed to adequately respond to the state’s improper closing arguments, and failed to adequately consult with, investigate, prepare, and present the testimony of a forensic accountant. Claim two alleges that trial counsel was operating under an actual conflict of interest ^[2] and claim three alleges that the petitioner’s due process rights were violated by prosecutorial impropriety when the state’s attorney allegedly argued during closing arguments that the jury should make inferences he knew to be false, and that went to the heart of what the petitioner characterizes as the state’s " weak" case. The respondent denies the claims. Based upon the evidence adduced at trial, the court finds the issues in favor of the respondent and denies the petition.

I Procedural History

The petitioner was originally charged in docket number CR-08-0087415-T in the New Haven Judicial District, with thirteen counts of larceny by embezzlement- in the first degree, in violation of General Statutes § 53a-122(a)(2) (counts one through four); in the second degree, in violation of General Statutes § 53a-123(a)(2) (counts five through seven); and in the third degree, in violation of General Statutes § 53a-124(a)(2) (counts eight through thirteen). On May 24, the jury found the petitioner guilty on counts one three, four through six, eight through thirteen; and not guilty on count two as charged, but guilty of the lesser included offense of larceny in the third degree; and not guilty on count seven. The trial court, B. Fischer, J., imposed a total effective sentence of twelve years of incarceration, execution suspended after six, with five years of probation with conditions.

II Direct Appeal

The petitioner filed a direct appeal wherein he claimed that: " (1) the evidence was insufficient to support his conviction of larceny on all counts; (2) he was deprived of a fair trial by the prosecutor’s statements made during the state’s closing argument; and (3) he was denied his constitutional right to a speedy trial when the state ‘failed to bring him to trial until four and a half years after his arrest ...’ " State v. Friend, 159 Conn.App. 285, 289, 122 A.3d 740 (2015). The Appellate Court affirmed the petitioner’s conviction and the Supreme Court denied certification to appeal, 319 Conn. 954, 125 A.3d 533 (2015). The petitioner filed a motion for reconsideration of the Supreme Court’s denial of the petition for certification which was denied.

On direct appeal, the Appellate Court stated that the jury reasonably could have found the following facts. " On August 2, 2007, the defendant signed an agreement to become a consultant to SBC [Standard Beef Company] in New Haven. SBC was owned solely by Henry Bawarsky and was in the business of purchasing meat products from wholesale suppliers and then reselling them to its customers. Under the terms of the agreement, the ‘specific services’ that were to be provided by the defendant to SBC would have to be mutually agreed on by the parties. The defendant would provide his services to SBC as an independent contractor and would be ineligible to receive ‘any additional compensation or employee benefits that would otherwise accrue to him if he were an employee ...’ The agreement further provided that the defendant would be reimbursed for his documented out-of-pocket expenses. In consideration for his services, the defendant would receive 25 percent of SBC’s net profits estimated weekly.^[3] In addition, the defendant was to ‘receive an option to purchase, together with Richard Greenfield, all of the outstanding shares’ of SBC to be exercised by December 31, 2007.^[4] The agreement specifically provided that ‘[a]ll moneys to be paid by [SBC] to third parties’ had to be approved in writing by Bawarsky and either the defendant or Greenfield, which could be evidenced by ‘a check signed by both such parties.’^[5] Finally, the agreement provided that its terms ‘may not be altered, modified or extended except in writing signed by both parties.’

" Prior to the defendant’s becoming a consultant to SBC, the company employed approximately twenty people. It was managed primarily by Bawarsky, senior vice president William Dober, and senior accountant/comptroller Fred Auger. Paper documents were created to keep track of the inventory and finances.^[6] The blank company checks were stored in a safe. Only employees in a position of trust had the combination to access the safe.^[7] Prior to any checks being sent out, Auger would match the printed checks with the corresponding invoices and submit them to Dober for verification and signature. Likewise, Dober, who had a corporate credit card, provided Auger with itemized receipts to explain and justify the charges on the account. Although Auger could issue checks, he was not authorized to sign them. Overall, Bawarsky, Dober, and Auger actively were engaged in the running of SBC and remained informed of its day-to-day operations and financial situation.

" In August 2007, SBC was in a poor financial situation; it did not have enough funds to pay its suppliers on time and frequently risked overdrafting its bank account. [Indeed, creditors were pushing to be paid]. Nevertheless, SBC remained an attractive acquisition target because it owned approximately a 15 percent stake in New Haven Food Terminal- a real estate asset worth ‘millions of dollars.’

" Once the defendant had assumed his role as a consultant to SBC in August 2007, he immediately began implementing changes in the way the company had been operating. The old computer software was enhanced by a modern one, providing more timely and accurate information to the sales personnel.^[8] The data from the new system, which became fully operational in October 2007, fed directly into Greenfield’s office in New York, so he could remotely monitor and access SBC accounts. In addition to the new software, Greenfield provided SBC with barcode scanners and label printers to improve efficiency. Greenfield also provided SBC with an $800,000 line of guaranteed trade credit to help ease the company’s financial burden.^[9] As a result of these changes, SBC’s finances significantly improved; the frequency and amounts of the bank account overdrafts diminished, profit margins improved, and the annual loss of $400,000 began to decrease.

" At the time of these changes, Bawarsky was seen with the defendant and introduced him to the company’s personnel as someone who would help turn the business around and become the eventual owner of SBC. On August 6, 2007, Bawarsky, who was seventy-nine years old, suffered a broken leg, was hospitalized for more than a month and was unable to participate in the running of SBC. Even after he was able to return to work, Bawarsky would come in only for several hours three or four times a week.

" Following Bawarsky’s injury, the defendant increased his role in the day-to-day operations of SBC. On September 24, 2007, he fired Auger and assumed the company’s accountant/comptroller duties, becoming an employee in addition to his consultant position. Having assumed Auger’s position, the defendant gained control over the SBC checkbook, and Dober no longer had control over some checks that were being sent out.

" On November 27, 2007, the parties signed an amendment to the original agreement extending the option to purchase SBC to February 28, 2008. Despite the extension, the sale of SBC did not occur. In February 2008, David Bawarsky, Henry Bawarsky’s son, took control of the company and forced the defendant out, removing him from the property with the help of the New Haven police.

" A criminal investigation ensued, and the defendant was charged with thirteen counts of larceny.^[10] The jury found the defendant guilty on twelve counts, and the court sentenced him to twelve years incarceration, execution suspended after six years, with five years probation." State v. Friend, supra, 159 Conn.App. 289-92.

III

Habeas Proceedings

The habeas petition was tried to the court over the course of five days, August 3rd, 10th, 17th, 21st and 22nd, 2017. The court ordered that post-trial briefs be filed by no later than September 21, 2017. The petitioner requested a two-day extension to September 25, 2017, which was granted by the court. The petitioner’s post-trial brief was received on September 25, 2017, and the respondent’s was received on September 26, 2017. On September 25, 2017, the petitioner requested oral argument on the assertions made by the petitioner and respondent in their post-trial briefs and proposed findings of fact. The court granted the petitioner’s request and heard oral argument on October 12, 2017.

At the habeas trial, the court took judicial notice of the criminal trial proceedings, including the criminal trial transcripts the bankruptcy file in the SBC bankruptcy case, the Appellate record, including the decision of the Appellate Court, the Supreme Court’s denial of petitioner’s petition for certification, and denial of petitioner’s motion for reconsideration of the denial of petition for certification. The petitioner presented testimony of Attorney Norman...