Benjamin v. Warden, State Prison

Ezra BENJAMIN #250838 v. WARDEN, State Prison

No. TSRCV124004820S

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

January 11, 2018

UNPUBLISHED OPINION

OPINION

Farley, J.

The petitioner, Ezra Benjamin, seeks habeas corpus relief based on alleged ineffective assistance of trial counsel resulting in his convictions in two cases consolidated for trial in 2002. This petition was filed in 2012, but was preceded by a series of petitions Mr. Benjamin withdrew prior to trial, all alleging ineffective assistance of trial counsel, among other grounds. Mr. Benjamin was convicted in one case of sexual assault in the first degree (General Statutes § 53a-70(a)(1)), assault in the second degree (General Statutes § 53a-60(a)(1)) and unlawful restraint in the first degree (General Statutes § 53a-95). In that case he received a total effective sentence of thirty years to serve. In the second case, Mr. Benjamin was convicted of assault in the second degree (General Statutes § 53a-60(a)(1)) and unlawful restraint in the first degree (General Statutes § 53a-95). He was sentenced to ten years to serve in the second case, to run consecutively to the sentence imposed in the first case for a total effective sentence of forty years to serve.

Mr Benjamin alleges that his trial counsel, appointed two months before the trial began, rendered ineffective assistance in three ways. First, he allegedly failed to properly investigate the DNA evidence relied upon by the state to obtain his conviction, including the circumstances under which his own DNA sample was obtained by the state. Second he claims that the circumstances under which trial counsel was called upon to represent him- an appointment two months prior to trial combined with the state’s late disclosure of DNA evidence and trial counsel’s obligations in another trial proceeding contemporaneously with this one- rendered trial counsel’s assistance presumptively ineffective under U.S. v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Finally, he maintains trial counsel’s cross examination of several witnesses at trial was inadequate.

At the trial of this case Mr. Benjamin, who was self-represented, presented testimony from Anita Vailonis, a criminalist at the state lab who testified at Mr. Benjamin’s criminal trial, Kevin Daly, who is an attorney that responded to a FOIA request from Mr. Benjamin, and Michelle Jones, Mr. Benjamin’s sister. Mr. Benjamin did not testify. The respondent presented testimony from Robert Berke, who was Mr. Benjamin’s criminal defense attorney at the underlying criminal trial. The court has considered all of the testimony at trial and has reviewed and considered all the exhibits introduced into evidence, including a transcript of the entire trial that resulted in Mr. Benjamin’s convictions. The court concludes that Mr. Benjamin has not proven his claims and, therefore, his petition is denied.

I. FACTS

On the night of September 26, 2001, two women were assaulted in Waterbury. They were both abducted and strangled to the point of unconsciousness. The first victim was beaten and struck in the head with a rock. The second was sexually assaulted. Both women had been working as prostitutes that night and had been picked up by their assailant in his car, taken somewhere, exited the car and then been assaulted. The police investigation led to Mr. Benjamin, who was arrested at his home in the early morning hours of September 27, 2001.

Both victims were taken to St. Mary’s Hospital for examination and sexual assault kits were obtained from both of them. After connecting Mr. Benjamin’s car to the assaults, around the time of his arrest, the police had the car towed to their facility for later examination. A search warrant was obtained to search Mr. Benjamin’s residence and his car. Pursuant to that warrant, the police removed items of clothing found in Mr. Benjamin’s apartment. Detective Michael Silva, who was assigned to the Waterbury Police Department’s crime lab and was the lead crime scene investigator at Mr. Benjamin’s home, testified that each item was placed in a separate evidence bag, the bags were sealed and ultimately deposited with the police department’s property division. These items of clothing were not individually photographed at the crime scene, nor were there any observations recorded concerning the presence or lack of blood on the clothing. Before these items were sent to the state laboratory for testing, while they were still in the custody of the police department, the items of clothing were removed from their bags to be photographed by Detective Silva. At that time, he noted the presence of blood on some of these items of clothing. Mr. Benjamin appears to claim that Detective Silva planted the blood found on these clothes. The trial record also reveals that Detective Silva handled the clothing in such a way as to create some risk of cross contamination.

At 2:20 p.m. on September 27, 2001 a warrant was obtained authorizing the police to obtain biological samples from Mr. Benjamin for purposes of blood testing as well as DNA analysis and comparison with the two victims. These samples were obtained at St. Mary’s Hospital by Dr. Stephen Holland. According to Doctor Holland, refreshing his recollection from his report, he did this work between 3:30 p.m. and 4:00 p.m. that day. There was arguably conflicting testimony, however, from Detective Silva and Sargent Eugene Coyle. Neither of these witnesses testified at the habeas trial. At Mr. Benjamin’s criminal trial, Detective Silva testified that after leaving Mr. Benjamin’s home on the initial visit in the early morning of September 27th, he was at the hospital " in the later hours of that morning." His testimony suggests that he may have been present at the hospital when Mr. Benjamin’s samples were obtained, but he also testified that it was another Detective, Lucinda Lopes, who received the kit from Dr. Holland. The significance to Mr. Benjamin is that it is possible to infer that the samples were taken before the warrant was obtained, if it is inferred from Detective Silva’s testimony that all the testing occurred " in the later hours of that morning." It is also possible to infer, however, that Detective Silva was present at the hospital when the victims’ samples were obtained that morning, not when Mr. Benjamin’s samples were obtained later in the day. Sargent Coyle was involved in the initial investigation at both crime scenes and at Mr. Benjamin’s home when he was arrested. He spoke to him briefly at the police station, but had no dealings with him after that. He was not present at the hospital at any time that day. He testified that he did not know when Mr. Benjamin’s sexual assault kit was done, but nevertheless he believed it was done between 9:00 a.m. and 11:00 a.m. that morning. This testimony was elicited by Attorney Berke on cross examination. Sargent Coyle also testified on redirect, however, that the samples were taken after the search warrant was obtained.

Mr. Benjamin claims that Detective Lopes, also with the Waterbury crime lab, gave conflicting testimony as well. The court’s review of that testimony, however, reflects that it was not inconsistent with that of Dr. Holland. Mr. Benjamin’s argument is based upon the contextual events of that day for Detective Lopes, two doctors’ appointments she attended in order to get cleared for upcoming surgery. Mr. Benjamin believes her testimony contradicts Detective Silva’s testimony that it was her who received the evidence obtained by Dr. Holland from Mr. Benjamin. Her first appointment delayed her arrival at work on the morning of September 27th. She arrived between 10:45 a.m. and 11:00 a.m. She then was present during the search of Mr. Benjamin’s home, but left there for her second appointment scheduled for 1:30 p.m. Mr. Benjamin concludes it could not have been Detective Lopes who obtained the samples taken from Mr. Benjamin, although she testified she was there, because there is no evidence that she returned to work after the second appointment. There is evidence, however, that she did return to work after that appointment. Detective Lopes testified that she participated in the examination of Mr. Benjamin’s car, which took place " late in the day on the twenty-seventh, because we went to [Mr. Benjamin’s home] first, then we went to St. Mary’s Hospital for the search warrant on Mr. Benjamin, and then the vehicle."

Attorney Robert Berke was appointed to represent Mr. Benjamin as a special public defender in early August 2002. Mr. Benjamin was represented by other counsel throughout most of the pretrial phase of his case. Although the state gave notice that it would rely on DNA evidence and disclosed DNA reports prior to Attorney Berke’s appointment, the state disclosed two additional forensic reports, one on the eve of trial and one during the trial. A DNA report dated September 25, 2002 was provided on September 30, 2002. The matter was raised with the court on October 2, 2002, but no action was taken so that Attorney Berke could consult with his expert, who was regularly available to him. Attorney Berke did not move to preclude the evidence, but sought additional time to prepare his cross examinations of the witnesses from the state lab. On October 4, 2002, the court determined that it would allow a break in the trial, so that Attorney Berke would have a half day plus a weekend to prepare cross examination of the state’s experts after they testified on direct.

On October 18, 2002, a Friday, the state’s criminalist and DNA expert testified on direct examination. The record reflects that Attorney Berke had been consulting with his own expert and the state lab regarding the forensic biology...