Wargo v. Comm'r of Corr.
| Decision Date | 06 August 2013 |
| Docket Number | No. 33222.,33222. |
| Citation | 144 Conn.App. 695,73 A.3d 821 |
| Court | Connecticut Court of Appeals |
| Parties | Lance WARGO v. COMMISSIONER OF CORRECTION. |
OPINION TEXT STARTS HERE
Christopher Y. Duby, assigned counsel, for the appellant (petitioner).
James A. Killen, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Erika L. Brookman, assistant state's attorney, for the appellee (respondent).
ROBINSON, SHELDON and KELLER, Js.
The petitioner, Lance Wargo, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus challenging his confinement by the respondent commissioner of correction pursuant to judgments of conviction for murder, arson in the first degree, risk of injury and tampering with evidence on the ground of ineffective assistance of counsel. On appeal, the petitioner contends that the habeas court improperly rejected his claims that his trial counsel was ineffective because (1) trial counsel had a conflict of interest in representing him both on his claim for insurance proceeds in connection with the fire that gave rise to certain of his criminal charges and at his underlying trial on those charges, and (2) his trial attorney did not effectively cross-examine the state's expert as to the cause and origin of the subject fire. We affirm the judgment of the habeas court.
The following facts, as recited by our Supreme Court, in upholding this court's affirmance of the petitioner's conviction on direct appeal, are relevant to our resolution of the petitioner's claims on appeal. “On November 19, 1994, at approximately 3:19 a.m., Ronald McClain and Sheila McClain, neighbors who lived across the street from the [petitioner] [on Hillside Avenue in Plymouth], awoke to screams from the [petitioner's] children. Ronald McClain observed an orange glow coming from the left side of the [petitioner's] house. He also observed the [petitioner's] two children on the roof of the front porch, a ladder against the front porch and the [petitioner] standing at the bottom of the ladder. [Ronald] McClain called 911 and went downstairs to let the [petitioner and his children] into [McClain's] home. The children were screaming that their house was on fire and that they could not find their mother [Wendy Wargo]. The [petitioner] stated that his wife was in the house, that he could not get her out and that he did not know if she had come home. The children remained at the McClain home while the [petitioner] and Ronald McClain returned to the burning house. The [petitioner] again stated that he did not know if his wife had come home that evening.
“The firefighters arrived a few minutes later and found the [petitioner] outside the house, confused and attempting to put water on the fire with a garden hose. The [petitioner] told the firefighters that he did not know his wife's whereabouts. Later, the [petitioner], while he pointed to the den, told fireman Frederick Telke, ‘Yes, she's in here, she's in here.’ When asked if he was sure, the [petitioner] walked to the driveway and pointed to his wife's car.
“Firefighters entered the home and approached the den, where the fire was concentrated, but were unable to remain due to the high temperatures, heavy smoke and unstable floor. The body of the victim ... was later found in this area. Firefighters also entered the second floor of the house and found only smoke damage. They did not hear any smoke detector alarms.
“Several hours later, Officer Gerald Allain of the Plymouth police department questioned the [petitioner]. The [petitioner] stated that the victim smoked cigarettes and that he recalled the smoke alarms going off. He stated that the thick smoke forced him to his knees [and that] he took the children to the porch roof.
“On November 19, 1994, the [petitioner] gave a signed, written statement to the police. He indicated that the victim slept on the couch because their marriage was ‘on the rocks.’ That same day, the [petitioner] told the victim's uncle, James Castiola, that he knew what had happened. He stated that the victim had come home, and had lain down on the couch, [near] approximately fifty videotapes. While on the couch, the victim had lit a cigarette and had fallen asleep. The [petitioner] told Castiola that the fire had been accelerated by the videotapes, which cannot be put out when they catch fire.
“State Trooper Kevin McGurk was assigned to determine the cause and origin of the fire. He examined the Wargo home the following morning and determined that the fire originated in the den. McGurk discovered a pour pattern leading up to the area of origin, which indicated that an accelerant had been used. On the basis of his observations, McGurk concluded that the fire had been intentionally set. Other officers executed a search warrant on the Wargo home and retrieved an empty bottle of bleach from the basement and a can of acetone from the storage shed. Joseph Cristino, a forensic analysis engineer, examined the two smoke detectors retrieved from the Wargo home. [Cristino found that it was ‘highly improbable’ that the first floor smoke detector was working at the time of the fire and that, had the battery been connected to the second floor detector, there was a high probability that it would have worked at the time of the fire.]
“A notebook also was seized from the [petitioner's] bedroom dresser. The parties stipulated that the notes contained therein were written in the [petitioner's] handwriting. The [petitioner] was a member of the fire brigade at work and had received training in chemical fires and hazardous materials. The [petitioner] was familiar with spontaneous combustion caused by the combination of alkalies and acids. The [petitioner] admitted writing various phrases in the notebook, such as ‘lock box in shed,’ ‘tool box,’ ‘acetone,’ ‘alcohol clorox,’ ‘alm foil,’ ‘dry run,’ ‘rope kds drs,’ ‘straps,’ ‘pillow,’ ‘oil in can,’ ‘rid of stuff,’ ‘glvs,’ ‘hat,’ ‘shirt,’ ‘cigs,’ and ‘ldr.’ The [petitioner] stated that these abbreviations could have been a camping list, but that he did not know why he wrote these abbreviations.” State v. Wargo, 255 Conn. 113, 117–19, 763 A.2d 1 (2000).
The petitioner was convicted of one count of murder in violation of General Statutes § 53–54a (a), two counts of arson in the first degree in violation of General Statutes § 53a–111 (1) and (4), one count of tampering with physical evidence in violation of General Statutes § 53a–155 (a)(1), and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53–21. As noted, the petitioner's conviction was affirmed by this court and our Supreme Court.
On July 25, 2005, the petitioner filed this action seeking a writ of habeas corpus on the following bases: (1) that he is actually innocent of the crimes for which he was convicted; (2) that the testimony regardingthe cause of the victim's death was false and unreliable; (3) that his trial attorney provided ineffective assistance because he had a conflict of interest in representing him in a civil contingent fee matter against his homeowner's insurance carrier and in the criminal matter giving rise to the present habeas petition; and (4) that his trial attorney was ineffective in his cross-examination of the witnesses who testified as to the cause of the victim's death and the fire science evidence.
By memorandum of decision dated January 20, 2011, the habeas court rejected all of the petitioner's claims and denied his petition. The habeas court thereafter granted the petitioner's petition for certification to appeal to this court and this appeal followed. Additional facts will be set forth as necessary.
On appeal, the petitioner challenges only the habeas court's rulings on his ineffective assistance of counsel claims.1 “Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary....
...
To continue reading
Request your trial
-
Soto v. Comm'r of Corr.
...a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) Wargo v. Commissioner of Correction , 144 Conn. App. 695, 700–702, 73 A.3d 821 (2013), appeal dismissed, 316 Conn. 180, 112 A.3d 777 (2015). "It is axiomatic that courts may decide against ......
-
Kaddah v. Comm'r of Corr.
...to undermine confidence in the outcome." (Emphasis added; internal quotation marks omitted.) Wargo v. Commissioner of Correction , 144 Conn. App. 695, 701–702, 73 A.3d 821 (2013), appeal dismissed, 316 Conn. 180, 112 A.3d 777 (2015).I The petitioner first claims that he was prejudiced by Ad......
- Wargo v. Warden, State Prison
- State v. Nelson, 33691.