Kaminski v. Commissioner of Correction

• Decision Date: 18 November 2019
• Docket Number: CV144006234S
• Court: Connecticut Superior Court
• Parties: John KAMINSKI v. COMMISSIONER OF CORRECTION

John KAMINSKI v. COMMISSIONER OF CORRECTION

No. CV144006234S

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

November 18, 2019

UNPUBLISHED OPINION

OPINION

Bhatt J.

The petitioner, John Kaminski, alleges in his amended petition that he is illegally confined as a result of a sequence of state actions. Essentially, the petitioner asserts that the police conducted an illegal search of his residence which led to other, subsequent charges for which he presently stands convicted. The petitioner avers that the first criminal case which involved the alleged illegal search, was later illegally nolled to intentionally conceal the illegal search. This court does not agree and, therefore, the petition is denied in part and dismissed in part.

I. FACTUAL BACKGROUND

In docket number CR04-0214486-S (initial case), the police applied for and obtained a search warrant to search the petitioner’s residence. This search warrant was based on a charge of risk of injury to a minor. The police executed the search warrant, which encompassed the petitioner’s computer, and which ultimately led to the discovery of images and videos on that computer. The petitioner was then charged with numerous offenses in docket numbers CR04-0216594-T, CR04-0216595-T, and CR04-0216596-T (subsequent cases). Represented by Attorney Martin Rizzi, the petitioner sought to suppress the evidence obtained as a result of the search warrant in the initial case. The court, Shortall, J., denied the motion to suppress after a hearing. The petitioner then pleaded nolo contendere in the subsequent cases to six counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2) and the court, Clifford, J., sentenced him to a total effective sentence of fifty years’ incarceration, execution suspended after twenty-five years, of which twenty years is a mandatory minimum, followed by twenty-five years of probation. The petitioner appealed his convictions.

The petitioner filed the instant petition for writ of habeas corpus on or about May 20, 2014. Counsel was assigned initially but permitted to withdraw. The self-represented petitioner filed an amended petition containing various claims or arguments.^[1] The petitioner has structured the amended petition in a manner intended to clarify his claims. The opening statement summarizes the petitioner’s central claim: that illegal actions in the nolled initial case, including the nolle itself, rendered the subsequent cases illegal and void. The amended petition lists four "questions for review" for the habeas court: (1) that documents filed by appellate counsel and first habeas counsel must be expunged from the record under the "fruit of the poisonous tree" doctrine because they arise from a nolled initial case; (2) the petitioner’s convictions are void as a result of incompetent counsel (i.e., ineffective assistance of counsel); (3) that the nolle of the initial case is legally defective because the petitioner and his attorney were not present when the prosecutor entered the nolle into the record; and (4) that the prosecutor engaged in improprieties and/or abused his discretion. The amended petition also identifies ineffective assistance of several predecessor counsel as an allegation, as well as supporting arguments why his conviction and incarceration are illegal. The respondent’s return, relying on Practice Book § 23-29(2),^[2] asserts that the claims identified as questions one through three fail to state a claim upon which habeas relief can be granted. The return further alleges that question four fails to state a claim for which relief can be granted, as well as that the petitioner cannot obtain habeas corpus review of that claim. Additionally, the return asserts that the petitioner’s fourth question or claim is procedurally defaulted because he did not first raise it with the trial court or on direct appeal. The petitioner’s reply essentially asserts ineffective assistance of counsel as the basis for the procedural default.

The court heard testimony from the petitioner, the sole witness. The only exhibits were two documents entered into evidence by the respondent: (1) the May 1, 2006 transcript of the nolle in the initial case; and (2) the September 21, 2016 memorandum of decision, D’Addabbo, J., denying or dismissing the petitioner’s claims raised in a motion to correct a sentence imposed in an illegal manner in the subsequent cases. The parties presented closing arguments. Although the court did not issue any post-trial briefing orders, the petitioner submitted a post-trial brief.

II. FINDINGS OF FACT

According to our Appellate Court, the trial court found the following in ruling on the petitioner’s motion to suppress:

Six months after completing probation for his sexual assault of a fourteen-year-old girl in 1993, [the petitioner], a forty-nine-year-old man, brought another fourteen-year-old girl ... to his apartment and took photographs of her. The [petitioner] had agreed with the young girl’s mother that he would take photographs of the girl for her modeling career. The mother had signed a written agreement but had not yet had the signature appearing on that agreement notarized. Most importantly, the agreement contained a provision that the mother would be present at all of the photography sessions.

On February 24, 2004, the [petitioner] picked up the girl at an address different from her mother’s address and took her to his residence. The [petitioner] had informed the girl that they would be meeting to discuss her modeling career. After they arrived at his residence, however, he asked her to change into a man’s button-down shirt so he could take photographs of her. At the [petitioner’s] request, the girl went into the [petitioner’s] bedroom and selected a button-down shirt. Below her waist, the girl was wearing only thong underpants.^[3] The [petitioner] then proceeded to take thirty photographs of the girl in a variety of poses. In its memorandum of decision on the motion to suppress, the court stated: "The [petitioner] told the girl to pose any way she liked. In some of the thirty photographs taken the girl wore only thong panties on the lower portion of her body; in one of those photographs, which was provided to the court, the girl is pictured sitting down with her knees drawn up to her chin and her crotch area exposed, covered only by the thong panties. In another photograph, the girl is pictured lying on her stomach wearing a man’s dress shirt and thong panties, the dress shirt has raised up on her back and a portion of her buttocks is exposed.^[4]

After taking the photographs, the [petitioner] sent them via his computer to an unidentified third person, advising that person [that] he would be taking more pictures on Friday, February 27, 2004, with a better camera and asking the recipient of these photographs to let him know if he wanted those photographs as well. The [petitioner] had asked the girl to meet him on that Friday to take more photographs. For this photography session, the [petitioner] "asked her to wear ‘little girl type’ panties on that date because, he said, ‘the company’ liked the models to wear such panties."

The [petitioner] then drove the girl back to the location from which he had retrieved her, the residence of the family friends where she had been staying. After the girl informed these family friends where she had been and showed them the photographs, they became concerned and alerted the police about the defendant’s involvement with the girl.

The victim informed the police that while at the [petitioner’s] apartment the [petitioner] showed her a web site named "LiL’Amber.com." The court stated: "This web site features young females (preteens and young teenagers) dressed in panties, bathing suits and half shirts." The police could not fully access the web site, which they classified as "child erotica," because it required a fee.

During their investigation, the police discovered that "[i]n 1999, apparently while still on probation for his sexual assault conviction, the [petitioner] had used a credit card to purchase access to a web site featuring child pornography. This web site had been the subject of a seizure carried out by the Dallas, Texas, police department in the course of a nationwide investigation of child pornography and the Internet, and the [petitioner’s] name was found on a listing of individuals who had purchased access to the web site."

Also, while on probation, the [petitioner] informed his probation officer that he was "self-employed in the janitorial and real estate maintenance business ..." Moreover, "he had never mentioned to his probation officer that he was intending to go into the child modeling or photography fields."

On the basis of the [petitioner’s] behavior with the fourteen-year-old girl and his other actions, the police submitted an affidavit to a Superior Court judge in support of an application for a search warrant to search the [petitioner’s] residence, which was based on risk of injury to a child. The court stated: "In addition, the affiants, two veteran New Britain detectives, relying on their ‘training and experience,’ informed the issuing judge that, although the images appearing on the ‘Lil’Amber’ web site did not appear to be child pornography, as defined in General Statutes § 53a-193(13), ‘persons who focus on children as sexual objects often collect these images [known as "child erotica"] as well as child pornography’ and often use them in their seduction of child victims. Further, the affiants averred that ‘persons involved in sending or receiving child erotica or pornography tend to retain it for long periods of time’ on their computers and in other formats, such as diskettes or CD-ROMS, that

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