Herring v. Warden
| Decision Date | 14 August 2019 |
| Docket Number | CV154007187S |
| Court | Connecticut Superior Court |
| Parties | Aaron Herring v. Warden |
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Bhatt, Tejas, J.
The petitioner, Aaron Herring, entered a written plea of nolo contendere to one count of assault on public safety personnel for an incident that occurred at the Northern Correctional Institution when he attempted to assault another inmate and officers were injured during that attempted assault. He received a consecutive sentence of two years’ incarceration. He alleges that his trial counsel was ineffective and but for this ineffective assistance of counsel, he would not have accepted the plea agreement and instead would have insisted on a trial. For the reasons set forth below, the petition is DENIED.
The petitioner was charged with one count of assault in the second degree in violation of General Statutes § 53a-60, one count of assault of public safety personnel in violation of General Statutes § 53a-167c and one count of breach of peace in violation of General Statutes § 53a-181. At all times relevant to this petition he was represented by Attorney David Channing. At the time of the incident, he was serving an unrelated sentence of eight years’ incarceration for a conviction of robbery in the first degree. To resolve the instant case, he entered a written plea of nolo contendere[1] to assault of public safety personnel and received a sentence of two years’ incarceration, which was to be served consecutive to the eight-year sentence.
The petitioner initiated the present action on May 5, 2015. An amended petition was filed by counsel on June 25, 2018 alleging ineffective assistance of trial counsel in two different ways: first, that Attorney Channing failed to properly investigate the allegations and any defenses, and second, that Attorney Channing failed to properly communicate with the petitioner. Respondent filed a return on July 9, 2018, denying the allegations. This court heard evidence on two separate days. The petitioner testified on his own behalf and presented the testimony of Correctional Officers Thomas Schmidt and David Kidd and Attorney Channing. Several exhibits were admitted as evidence and the parties submitted posttrial briefs.
The crux of the state’s case was that the petitioner, while incarcerated at Northern Correctional Institution, managed to leave his cell without any restraints and attempted to assault another inmate who was being escorted by correctional officers Schmidt and St. Pierre to the shower. Officer Schmidt suffered minor injuries and missed work for several days. Officer St. Pierre was seriously injured, had to undergo surgery and missed work for several months. During the subsequent investigation, correctional officers discovered a magnet that they believed had been placed inside the door frame, apparently in an attempt to prevent the door from fully closing. The door was a slider door that makes a hissing sound when the hydraulics are released to permit the door to open. The doors are opened and closed by correctional officers in a control pod, to which inmates have no access. The state theorized that the petitioner used this magnet, or knew it was there, and utilized that to keep the door ajar so he could attack the inmate when the opportunity presented itself.
When interviewed by correctional staff, the petitioner denied placing any object in the door to hold it open, but an incident report indicates that he admitted to holding the door to prevent it from closing. The petitioner disputes this statement and maintains that he did nothing to interfere with the operation of the door. Correctional staff theorized that the petitioner had interfered with the operation of the door when he returned from the recreation yard earlier that morning, which was the only out-of-cell movement for the petitioner that day. However, an attempt by Correctional Maintenance Supervisor Barton to test the theory that the petitioner kept the door ajar using the magnet failed. These tests revealed that the door was fully operational and several attempts to circumvent the locking mechanism using the magnet were unsuccessful. An incident report written a few weeks after the incident indicated that neither Barton nor a Locksmith Hiller believed the lock could be defeated in the manner theorized. In addition, the petitioner’s cellmate also provided a statement that the petitioner did nothing to defeat the lock and that the door opened on its own. This incident report theorized that the door was opened due to error on part of some correctional officer since the door next to the petitioner’s cell had just been opened to let inmate Hunter, the target of the petitioner’s attempted assault, out of his cell.
Officer Schmidt, along with Officer St. Pierre, was escorting an inmate Hunter to the shower. Officer St. Pierre was ahead of Hunter, who was ahead of Officer Schmidt. As Officer Schmidt passed the petitioner’s cell, he heard a "pop" and in his peripheral vision, saw the door to the petitioner’s cell open. In his incident report written shortly after the incident, Officer Schmidt attributed the opening of the door to the petitioner physically prying it open, but testified at the habeas trial that he heard a pop or hissing sound consistent with it being opened remotely by an officer in the control room. The petitioner then rushed out, swinging his arms, hitting Officer Schmidt, apparently in an attempt to get past him in an effort to get at Hunter. Officer Schmidt pursued the petitioner and brought him to the ground with the assistance of Officer St. Pierre, where the petitioner struggled before he was ultimately secured using handcuffs and sprayed with pepper spray. It was during their attempts to subdue the petitioner that the officers were injured.
Inmate Hunter was housed in the cell next to the petitioner and he and the petitioner did not get along. Hunter had been disrespectful to the petitioner but since they were both housed at the Northern Correctional Institution, there was no way for them to have physical contact with one another. Thus, they expressed their dislike of each other through verbal altercations. According to the petitioner, both correctional staff and other inmates viewed Hunter as a "loudmouth instigator." The petitioner testified that the day before the incident, Officer St. Pierre approached him in his cell and offered him extra trays of food if he would assault Hunter. According to the petitioner he did not believe it to be a serious offer at the time, but when his door popped open while Hunter was passing by, he believed he had permission from staff to assault Hunter and he attempted to do so. It was not the petitioner’s intent to assault or harm any of the officers. He only intended to assault Hunter, but was prevented from doing so.
In the trial court, the petitioner was represented by Attorney Channing. The petitioner testified that he met with Attorney Channing about five times and all of these meetings took place at the courthouse. He further testified that there were no phone calls from Attorney Channing. According to the petitioner, Attorney Channing asked him about his version of events, but did not investigate the case, did not discuss the elements of the offenses or the minimum or maximum penalties he was exposed to and did not show him the videotape of the incident. According to the petitioner, Attorney Channing provided him a copy of the arrest warrant, but not any other documents pertaining to the case. The petitioner submitted a request for documents through a Freedom of Information Act request, which revealed the report in which it was noted that maintenance individuals were unable to recreate the alleged jamming of the door using a magnet. According to the petitioner, he entered his plea because Attorney Channing told him that he had no choice and, as a felon, his version would not be believed over that of the correctional officers. The petitioner testified that Attorney Channing did not explain the intent element of the statute and that his understanding of that element at the time of his habeas trial testimony differed from his understanding of that element at the time of the plea. He insisted that he did not intend to assault the correctional officials and has indeed maintained that position since the incident. The petitioner admitted on cross examination that he initiated a physical altercation with Hunter and that two officers were injured as a result of that.
The petitioner was canvassed by the trial court, Simon, J. prior to the acceptance of his written plea of nolo contendere. In that canvass, the court asked the petitioner if Attorney Channing had reviewed the state’s evidence with him, discussed the facts and circumstances of charge, discussed the elements of the offense and the maximum penalty for the offense. The petitioner answered in the affirmative to all these questions. When asked if he was satisfied with Attorney Channing’s performance, the petitioner replied that he was "totally satisfied."
Attorney Channing recalled meeting with the petitioner more than ten times during which he discussed the case and the applicable law. He asked the petitioner for his version of the events and discussed what the state would have to prove in order to secure a conviction. He discussed the elements of the offense with the petitioner, including the intent element attached to the statute. Attorney Channing was aware there was a video of the incident and attempted to obtain a copy...
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