Buie v. Warden

Robert Buie #301057 v. Warden

No. CV144005884S

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

May 11, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Hon Vernon D. Oliver, J.

The petitioner, Robert Buie, initiated this second petition for a writ of habeas corpus, claiming that his underlying criminal counsel and first habeas counsel provided him ineffective legal representation. The instant petition is consolidated with TSR-CV16-4007998. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The respondent denies the claims and leaves the petitioner to his proof. The court finds the issues for the respondent and denies the petition.

Procedural History

In the criminal matter State of Connecticut v. Robert Buie CR07-0358072, in the Waterbury Judicial District, the petitioner was charged with attempted aggravated sexual assault in the first degree, in violation of Connecticut General Statutes § § 53a-49(a)(2) and 53a-70a(a)(1); criminal liability for aggravated sexual assault in the first degree, in violation of General Statutes § § 53a-8 and 53a-70a(a)(1); criminal liability for aggravated sexual assault in the first degree, in violation of General Statutes § § 53a-8 and 53a-70a(a)(1); conspiracy to commit aggravated sexual assault in the first degree, in violation of General Statutes § § 53a-48(a) and 53a-70a(a)(1); and burglary in the first degree, in violation of General Statutes § 53a-101(a)(1).

For all purposes relevant to this petition, the petitioner was represented b attorney Errol Skyers. On October 27, 2008, the court, Alander, J., took evidence and heard argument on the petitioner's motion to suppress. The court, on October 29, 2008 denied the motion to suppress. This court adopts the following relevant findings:

" Based upon the evidence presented, I find the following facts. That Detective Michael Slavin was in charge of the police investigation of a sexual assault which occurred at 1812 Meriden Road in Waterbury, Connecticut. That he arrived at approximately 7 a.m. at 1820 Meriden Road, the front of-outside the front of 181 Meriden Road where he met with the defendant and Beverly Martin. They were outside of apartment number seventeen with other police officers.

" At the time the defendant and Beverly Martin were suspects in the alleged sexual assault. They were not, however, under arrest at the time.

" Apartment number seventeen at 1820 Meriden Road is a townhouse with a front entrance on to the street.

" Ms. Martin and the defendant were outside in the front of the townhouse. Both the defendant and Martin said they were willing to come to the police station for further questioning. They voluntarily indicated their willingness to go to the police station. They were not in handcuffs. They were not under arrest. At the time Ms. Martin indicated that before she was willing to go to the police station she needed to obtain some personal belongings that were in apartment number seventeen, specifically, keys and a cell phone. She stated to the police officers, I suppose you guys want to come in with me.

The witness responded--Detective Slavin responded, yes, it would be a good idea and the police accompanied--two police officers accompanied Ms. Martin into the apartment to escort her when she picked up her belongings.

" The reason they did so was because the police at the time knew details of the alleged sexual assault and they knew that a handgun had been involved in the sexual assault and they were concerned for officer safety because they had reason to believe that the handgun might be in the apartment, number seventeen, that Ms. Martin was entering to retrieve her belongings. That the police did not go into the apartment with any intent to search the apartment for evidence or any intent to seize any items. Their intent was solely to accompany Ms. Martin for officer safety.

" Detective Baxter and Detective Mills accompanied Ms. Martin into the apartment. They were gone a very brief period of time. They seized no items when they were in the apartment though they did observe at least one item that they believed was connected to the sexual assault. The police then secured the apartment, posted officers outside the apartment so that no one could enter the apartment. And Detective Slavin told Detective Baxter to apply for a search warrant for apartment number seventeen. The defendant and Ms. Martin were voluntarily transported to the police department. Again, they were not placed in handcuffs.

" At approximately twelve noon a search warrant for apartment number seventeen was signed by Judge Upson. No police officers entered apartment number seventeen prior to the obtaining of the search warrant. That prior to the police entering apartment number seventeen initially to accompany Ms. Martin both the defendant and Ms. Martin said that they both lived in the apartment. At the time the police did not know whose name was on the lease.

" That Lisa Ragaza, who was a crime technician with the Waterbury Police Department, entered apartment number seventeen at 1820 Meriden Road pursuant to the search warrant at approximately 12:15 a.m. In that time certain items were seized including dildos, guns, ammunition, and duct tape. Additionally, photos were taken.

" I find specifically that . . . neither Ms. Ragaza, or any member of the police department were in apartment seventeen at 9:26 or 9:30 a.m. as indicated by the wall clock.

" With those findings of fact, let me address the issues raised by the motion to suppress. Let me first deal with the claim that the police conducted a search inside apartment number seventeen and seized items prior to obtaining the search warrant, so called wall clock issue, what I deem to be the wall clock issue. As I stated, the . . . search warrant as signed by Judge Upson shortly before twelve noon. No police officer or anyone else entered apartment seventeen after the police escorted Ms. Martin out of the apartment upon obtaining her belongings at approximately 7 a.m. The police did not re-enter the apartment until approximately 12:15 a.m after the signing of the search warrant. I credit Ms Ragaza's testimony to that effect and find that the time indicated on the wall clock apparently was in error. So I conclude that the police conducted a search and seizure of the items pursuant to a valid search warrant.

" With respect to the more interesting issue related to whether there was a valid consent to enter the apartment when the police accompanied Ms. Martin for her to obtain her belongings. It is actually axiomatic that searches and seizures inside a home without a warrant are presumptively unreasonable. A warrantless search or entry into a home is not unreasonable, however, under the Fourth amendment to the United States Constitution or Article First section 7 of the Connecticut Constitution when a person with authority to do so has freely consented. It is the state's burden to prove that the consent was freely and voluntarily given, and that the person who purported to consent had the authority to do so. Such consent may not be established by mere acquiescence to police authority.

" When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. That's United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242. Common authority is not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property but rests rather on mutual use of the property by persons generally having joint access or control for most purposes so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. In addition, a warrantless search is valid when it is based on the consent of a third party who the police, at the time of the search, reasonably believe possesses common authority over the premises but who in fact does not have such authority. Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148. As with other factual determinations bearing upon search and seizure, determination of consent to enter must be judged against an objective standard, would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises.

" So in this case in my view the result rests upon a determination of whether the police could reasonably believe at the time of the search that Ms. Martin possessed common authority over the premises and whether her consent to for the police to enter the apartment was freely given. I do not have to determine for purposes of these proceedings whether Ms. Martin actually possessed common authority over the premises, if I determine that it was reasonable for the police to believe that she possessed common authority. So it's to that issue that I now turn. And the first subpart is whether consent was freely given by Ms. Martin. As I understand the legal standard, the consent must be voluntary. It must be free from any aspect of coercion, it must be the product of an essentially free and unconstrained choice. I find that the facts in this case support an affirmative answer to both of those questions...