Santiago v. Commissioner of Correction

• Decision Date: 22 February 2005
• Docket Number: No. 24980.,24980.
• Citation: 87 Conn.App. 568,867 A.2d 70
• Court: Connecticut Court of Appeals
• Parties: Adrian D. SANTIAGO v. COMMISSIONER OF CORRECTION.

867 A.2d 70

87 Conn.App. 568

Adrian D. SANTIAGO v. COMMISSIONER OF CORRECTION.

No. 24980.

Appellate Court of Connecticut.

Argued October 13, 2004.

Decided February 22, 2005.

Avery S. Chapman, New Haven, for the appellant (petitioner).

Rita M. Shair, senior assistant state's attorney, with whom were Michael Dearington, state's attorney, and, on the brief, Carolyn K. Longstreth, former senior assistant state's attorney, for the appellee (respondent).

LAVERY, C.J., and FLYNN and BISHOP, Js.

LAVERY, C.J.

The petitioner, Adrian D. Santiago, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. He claims on appeal that (1) the court improperly denied him certification for leave to appeal and (2) the denial of his petition for a writ of habeas corpus was improper because his trial counsel was burdened by an actual conflict of interest. Because we conclude that the petitioner's first claim is moot and disagree with the second, we affirm the judgment of the habeas court.

The following facts and procedural history are pertinent. A jury found the petitioner guilty of murder after a trial held in February, 1996. The occurrences underlying his conviction are recounted in our Supreme Court's decision disposing of his first direct appeal:

"On the night of November 1, 1993, the [petitioner] had been drinking beer with Mark Aviles and Joanne Negron, fellow residents of the Willimantic YMCA. At some point, Aviles and the [petitioner] left to purchase some marijuana. They encountered Fernando Ilarraza, the victim, on West Avenue in Willimantic and he offered to sell them marijuana. The [petitioner] refused to buy from the victim, however, because he believed that he would be cheated. When Aviles and the [petitioner] saw the victim later that evening, the [petitioner] and the victim `exchanged looks.' The [petitioner] subsequently told Aviles that he intended to shoot the victim. Aviles and the [petitioner] walked to a pay phone where the [petitioner] called a friend who lived in a Willimantic neighborhood called Windham Heights. Aviles heard the [petitioner] tell the friend that he was going to `do the mission' and that he needed a `piece' to do it. Aviles and the [petitioner] then walked back to the YMCA. The [petitioner] asked Negron to telephone for a taxi to take him to Windham Heights. He returned with a .22 caliber revolver, which he cleaned and loaded in Negron's apartment. Thereafter, he left wearing a black hat, a full-length black coat, black pants and black boots.

"Shortly before 11 p.m. that evening, a Coventry police officer, having just picked up a prisoner from the Willimantic police department, was traveling on Valley Street in Willimantic. He saw the body of the victim lying in the street, and contacted the Willimantic police. The victim was taken by ambulance to Windham Hospital where he was pronounced dead on arrival. An autopsy revealed that the victim had sustained two gunshot wounds, one behind the right ear and one to the right cheek. The gunshot behind the ear was fired from a distance of less than six inches and had caused the victim's death.

"When the [petitioner] returned that night, Aviles asked him if he had killed the victim and the [petitioner] replied that he had. The next day, Negron confronted the [petitioner] about the shooting. The [petitioner] told her that it was `something he had to do out of his heart' and that no one had told him to do it. Aviles met with a Willimantic police officer and reported the information. Thereafter, the [petitioner] was arrested and advised of his Miranda¹ rights. When the officers asked him if he had shot the victim, the [petitioner] responded, "si," and nodded his head affirmatively.

"Yajira Vega, who lived on West Avenue, testified that she had seen the [petitioner] and Aviles walking on West Avenue toward Valley Street. In addition, a taxi driver identified the [petitioner] as the person he had driven from the YMCA to Windham Heights at approximately 9:30 p.m. on November 1. The jury found the [petitioner] guilty of murder. The trial court denied the [petitioner's] motions for a new trial, for acquittal and in arrest of judgment, and rendered judgment in accordance with the jury verdict." State v. Santiago, 245 Conn. 301, 303-305, 715 A.2d 1 (1998).

On initial direct appeal, the petitioner's claims of error largely were rejected. The Supreme Court disagreed with the petitioner's arguments that his waiver of a probable cause hearing was invalid due to the state's failure to disclose exculpatory evidence; see id., at 306-13, 715 A.2d 1; that he was unconstitutionally deprived of a timely probable cause hearing, see id., at 313-16, 715 A.2d 1; and that his confession was involuntary. See id., at 316-23, 715 A.2d 1. The case was remanded, however, for a hearing to conduct further inquiry on the issue of possible juror misconduct. See id., at 323-40, 715 A.2d 1. After that hearing and a second appeal, the petitioner's conviction was affirmed. State v. Santiago, 252 Conn. 635, 748 A.2d 293 (2000).

On May 6, 2002, the petitioner filed an amended petition for habeas corpus relief, claiming that his trial counsel was ineffective in violation of the petitioner's sixth and fourteenth amendment rights due to, inter alia, an actual conflict of interest.² Specifically, the petitioner alleged that his counsel, various members of the Windham public defender's office (office), failed to investigate adequately and to interview possible alternate suspects and to pursue a meritorious defense of third party culpability because those suspects were current or former clients of the office. According to the petition, "all were considered suspects by the police, but were not investigated by counsel for petitioner," and "a third party guilt ... defense could have been adequately supported had the aforementioned investigation been conducted."

A hearing was held, and three attorneys from the office testified as to their representation of the petitioner before and during his trial. Through their testimony and the introduction of exhibits, the following was conveyed. Ramon J. Canning was the supervisor of the office and the ultimate decision maker; Pamala J. Favreau and Mark Shapera worked for Canning. Favreau was employed by the office until April, 1995, at which time she was replaced by Shapera. The office was small and had a heavy caseload covering several courts. Each attorney there would work on any of the office files as need and availability dictated. The office did not have the resources to segregate cases by attorney or to institute a formal conflict checking procedure. Canning and Favreau represented the petitioner on pretrial matters and during discovery; Shapera represented him during discovery and at trial.³ Two other clients of the office, Paul Casanova and Edwin Mendez, were among the group of people who in some way were involved with the investigation of the murder of Ilarraza. A third such individual, Ray Soto, was alleged but not shown to be a public defender client. Casanova, for some time, was represented concurrently with the petitioner, although on an unrelated charge.⁴ Mendez was a former client, also on an unrelated matter, and briefly was represented concurrently with the petitioner when Mendez violated his probation.⁵ Neither Casanova, Mendez nor Soto ever were arrested or charged with anything in connection with the murder.

The petitioner was arraigned and charged with murder on November 4, 1993. On February 16, 1994, on the advice of the office, the petitioner waived a hearing in probable cause. The state had made its witnesses, Aviles and Negron, available to the office, and the office investigator, Ray Condon, interviewed them. The office made a strategic decision to waive the hearing because they viewed Aviles and Negron as transient, i.e., if there were no hearing and the two witnesses thereafter left the area, their testimony would not be preserved in the record.

Favreau testified that at the time of the waiver, the office probably was unaware that it was representing Casanova, although it considered him a possible witness for the defense. She did not then consider the petitioner's and Casanova's interests to be adverse. When asked whether the advice to the petitioner to waive the hearing was "influenced in any way by [her] relationship as attorney to Soto, Mendez and Casanova," Favreau answered, "No."

During discovery in the petitioner's case, the relationship between the prosecution and the defense apparently was something less than cooperative. The prosecution sought a protective order for its file, which Favreau opposed. Ultimately, on September 2, 1994, the trial court ordered the state to disclose material from its file. The disclosed material included (1) a police report of a complaint made by two women, ten days prior to the murder, that Casanova had threatened to shoot the victim, (2) a police report of an interview with Mendez in which he recounted Soto's purported confession⁶ and relayed a street rumor that connected Soto with the gun that was used in the shooting,⁷ (3) a police report of an interview with Soto in which he stated that the victim was nothing but trouble, indicated that he had fought with the victim two to three weeks prior to the murder and gave an alibi for the night of the murder, (4) a statement taken from the victim's girlfriend in which she claimed that he had in the recent past fought with Soto, Mendez and the petitioner, and that Mendez had been looking for the victim on the night of the murder, asking about a bicycle⁸ and looking nervous, and (5) a statement of a security guard at a school attended by the victim's nephew in which the guard recounted the nephew's telling him that five people were in a car when the murder occurred, including two girls, Mendez, the petitioner and an unknown male, and that the petitioner had shot the victim because Soto wanted...