Brunetti v. Comm'r of Corr.

134 Conn.App. 160

37 A.3d 811

Anthony BRUNETTI

v.COMMISSIONER OF CORRECTION.

No. 32058.

Appellate Court of Connecticut.

Argued Oct. 20, 2011.Decided March 13, 2012.

Bradford Buchta, assistant public defender, for the appellant (petitioner).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Jo Anne Sulik, senior assistant state's attorney, for the appellee (respondent).

DiPENTIMA, C.J., and ALVORD and WEST, Js.

WEST, J.

The petitioner, Anthony Brunetti, appeals following the habeas court's denial of his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court's finding that his mother took no position regarding consent to the search of his home by the police was clearly erroneous. Additionally, the petitioner claims that the court incorrectly concluded that his constitutional claim of unlawful search and seizure was procedurally defaulted. The petitioner finally argues that the court improperly rejected his claim that the procedural default was excused by (1) the ineffective assistance of trial counsel and (2) the novelty of the petitioner's constitutional claim. We affirm the judgment of the habeas court.

The relevant facts related to the underlying conviction were set forth by our Supreme Court in a decision affirming the petitioner's conviction; see State v. Brunetti, 279 Conn. 39, 43–46, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007); which were set forth in the habeas court's memorandum of decision. “On the evening of June 23, 2000, thirty-five year old Doris Crain (victim) left her house and walked to Sonny's Bar on Campbell Avenue in West Haven. After the victim left the bar, she encountered the nineteen year old [petitioner] near the intersection of Campbell Avenue and Main Street. The victim approached the [petitioner] and asked whether he had any marijuana. The [petitioner] replied that he did and asked the victim to smoke with him behind the Washington Avenue Magnet School. After sharing a marijuana cigarette, the [petitioner] and the victim began kissing and engaging in sexual foreplay. After a short time, the [petitioner] and the victim partially removed their clothing, laid on the ground and began engaging in sexual intercourse. After having intercourse for about fifteen minutes, the victim asked the [petitioner] to stop because the sexual activity was hurting her. The [petitioner] ignored the victim's request and he continued until he reached an orgasm. After the intercourse ended, the victim got up, cursed at the [petitioner] and told him she was going to call the police. In response to the victim's threat, the [petitioner] grabbed the victim in a chokehold, punched her in the head, dragged her by her hair, and then by her feet, across the ground, and repeatedly struck her over the head with an empty glass bottle. The [petitioner] then left the victim's body in the high grass behind the school, throwing her clothing and the bottle nearby. As he left the school area, the [petitioner] walked past Jerrell Credle, Mike Banores, Jose Rivera and Michael Scott, who were seated at a picnic table on the school grounds. Credle recognized and greeted the [petitioner]. The [petitioner] acknowledged Credle, but did not stop to talk to him or the others, and continued to his home at 208 Center Street, where he lived with his parents.

“Following the discovery of the victim's body the next day, the West Haven police department obtained information suggesting that the [petitioner] might be involved in the victim's murder. [Detective] Anthony Buglione [of the major crime unit of the Connecticut state police] and [Detective] Joseph Biondi [of the West Haven police department] (detectives) went to the [petitioner's] home to question the [petitioner]. The detectives approached the [petitioner's] parents, who were sitting on the front porch of their home, and asked to speak with the [petitioner]. Anthony Brunetti, Sr., the [petitioner's] father, went inside the house to find the [petitioner] while the detectives remained outside with the [petitioner's] mother, Dawn Brunetti. The [petitioner] emerged from the Brunetti home with his father ten to fifteen minutes later. The detectives then told the [petitioner] that they wanted to bring him to the West Haven police department for questioning and asked him to produce the clothes he had worn the previous evening. The [petitioner] retrieved some clothing from his bedroom, and the detectives then drove the [petitioner] to the police station for questioning. The [petitioner's] parents followed the detectives to the police station in their own car.

“At the police station, the detectives questioned the [petitioner] in an interrogation room, while the [petitioner's] parents remained in the station's waiting area. Sometime during the questioning, Detective James Sweetman of the West Haven police department and [Detective] Mark Testoni [of the Connecticut state police] approached the [petitioner's] parents and asked them to sign a consent form to allow the West Haven police to search the Brunetti residence. The [petitioner's] father signed the form but the [petitioner's] mother refused to sign the form. The [petitioner's] parents then left the police station to let the police into their home to conduct the search while the [petitioner] remained at the station with the detectives. During the search of the home, the police looked inside the washing machine and found several items of recently washed clothing, including a pair of sweatpants, two tank tops and a towel. The sweatpants and towel exhibited bleach-like stains, and one of the tank tops exhibited reddish-brown blood-like stains. When ... Buglione, who was at the police station questioning the [petitioner], learned of this discovery, he told the [petitioner] and asked him to elaborate. The [petitioner] then became upset and requested a Bible. The detectives subsequently issued Miranda warnings to the [petitioner], who proceeded to give an inculpatory statement to the detectives, describing in detail the manner in which he had murdered the victim.” (Internal quotation marks omitted.)

The petitioner was charged with murder in violation of General Statutes § 53a–54a. Subsequently, the petitioner was convicted following a jury trial and was sentenced to sixty years imprisonment. On direct appeal, the petitioner claimed that the court improperly admitted physical evidence unlawfully seized from his home by the police because his mother had refused to consent to the search. Our Supreme Court concluded that the search of the petitioner's home violated article first, § 7, of our state constitution, holding that “the police must obtain the consent of all joint occupants who are present when consent is sought in order for a search by consent to be valid.” State v. Brunetti, 276 Conn. 40, 52, 883 A.2d 1167 (2005). The court reversed the judgment of conviction and remanded the case for a new trial. Id., at 65, 883 A.2d 1167. The state then filed a motion for reconsideration en banc, which was granted. State v. Brunetti, supra, 279 Conn. at 42, 901 A.2d 1. Upon reconsideration, the Supreme Court vacated and superseded its decision, holding that the petitioner was not entitled to review of his unpreserved search and seizure claim because he failed to provide an adequate record for review under the first prong of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and affirmed the petitioner's conviction. State v. Brunetti, supra, at 42–43, 901 A.2d 1.

The petitioner filed an amended three count petition for a writ of habeas corpus on September 30, 2008. In counts one and two, the petitioner claimed that the search and seizure of evidence from his home was unlawful under the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution, respectively. In the third count, the petitioner claimed ineffective assistance of counsel.

Following a habeas trial, the court denied the petition for a writ of habeas corpus. The court found that the petitioner was procedurally defaulted from raising his constitutional claims for the first time on habeas review. The court rejected both of the petitioner's arguments that his default was excused by the ineffective assistance of counsel or, in the alternative, the alleged novelty of his constitutional claim that “his mother's refusal to consent rendered the search of his home unlawful.” The court also rejected, on its merits, the petitioner's claim of ineffective assistance of counsel. The court granted the petitioner's petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary.

The petitioner raises two claims on appeal. The petitioner first argues that the habeas court's finding that the petitioner's mother “took no clear position regarding” consent to search the family home was clearly erroneous. Second, the petitioner asserts that the court improperly rejected both excuses for his procedural default. He claims that the court improperly rejected his claim of ineffective assistance of counsel regarding his trial counsel's failure to create an adequate record regarding the petitioner's mother's lack of consent to search the family home and failing to file a motion to suppress the evidence seized from the home. The petitioner claims that both of those failures by his counsel prejudiced the outcome of his criminal trial. Alternatively, the petitioner argues that the court improperly rejected his argument that his unlawful search and seizure claim was sufficiently novel to excuse his procedural default.

I

The petitioner first argues that the court's finding that his mother “took no clear position regarding” consent to the search the family home was clearly erroneous. The standard of review for a habeas court's findings of fact is well...