Chance v. Warden

Noel Chance v. Warden, State Prison

No. CV134005464

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

November 10, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Samuel J. Sferrazza, S.J.

The petitioner, Noel Chance, seeks habeas corpus relief from a total, effective sentence of twenty years imprisonment execution suspended after eight and one-half years, with fifteen years of probation. This sentence was imposed following a jury trial, for the crimes of kidnapping second degree; attempted kidnapping second degree; unlawful restraint first degree; and risk of injury to a minor. The jury acquitted the petitioner of kidnapping first degree and illegal sexual contact. The Appellate Court affirmed the judgment of conviction, except that the conviction for attempted kidnapping second degree was vacated as multiplitious, State v. Chance, 147 Conn.App. 598 83 A.3d 703 (2014); cert. denied, 311 Conn. 932, 87 A.3d 580 (2014).

The basis for the petitioner's amended petition is that his defense counsel, Attorney Walter Hussey, ineffectively represented him at his criminal trial. Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different. Id.

As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra .

This standard of reasonableness is measured by prevailing, professional practices. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.

If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence. Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). Reasonable probability means a probability sufficient to undermine confidence in the verdict. DaEira v. Commissioner, 107 Conn.App. 539, 542-43, 946 A.2d 249 (2008), cert. denied, 289 Conn. 911, 957 A.2d 877 (2008); that is, the petitioner must show that there is reasonable probability that he remains burdened by an unreliable determination of guilt. Id.

Specifically, in his second amended petition, the petitioner alleges that Attorney Hussey provided ineffective assistance by acquiescing to an improper jury instruction regarding the crime of kidnapping as explicated by our Supreme Court in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008); by failing to contest the admissibility of statements that the petitioner gave to the police; by failing to challenge the admissibility of evidence obtained by the police as a result of seizure of the petitioner's truck; and by failing to challenge other evidence seized without a warrant as a result of a search incident to the petitioner's arrest.

A review of the trial transcript discloses that the Appellate Court aptly summarized the evidence produced at the criminal trial that supported the jury's verdicts:

" From the spring of 2006 through the summer of 2007, the defendant regularly drove around rural areas of Litchfield County in his pickup truck with his black Labrador retrievers and followed female joggers. Four women testified about events that occurred prior to the incident involving the victim in this case. They identified the defendant's silver pickup truck, which sported an oval black Labrador retriever silhouette sticker on the rear window, as the truck that followed them. These women testified at trial that the defendant repeatedly drove past them without acknowledging them, as if he was watching them, as many as ten to twelve times during any one individual run.

One of the women, for example, a forty-three-year-old schoolteacher, reported the defendant's behavior to a state police trooper who worked in her school. The trooper advised her to note the license plate number of the defendant's vehicle. Later, when getting into her car after a jog, she saw the defendant's truck and was able to get close enough to make out, and to record, the license plate number. After recording the license plate number, she continued driving. At the next stop sign, she looked up and saw that the defendant's truck had circled around her and appeared behind her in her rearview mirror. " [F]rightened, " she drove to the Litchfield courthouse. Shortly thereafter, she stopped running in the area and provided the state trooper who worked at her school with the defendant's license plate number. After receiving complaints, police officers talked to the defendant on three separate occasions and warned him that his conduct was alarming female joggers. On March 30, 2007, after receiving one witness' complaint and determining that the license plate number the witness provided was registered to the defendant, Troopers Jason Uliano and Cono D'Elia contacted the defendant. When the troopers informed the defendant that his actions were alarming female joggers, the defendant indicated that he understood and said that " he would drive somewhere else, he wouldn't do that anymore." The defendant later provided a written statement to Trooper Samantha McCord in which he explained that he occasionally drove around Litchfield with his dogs and may have driven on the same roads repeatedly while drinking his coffee, but that he did not intend to offend anyone.

On April 27, 2007, McCord again visited the defendant and confronted him with information she uncovered that was inconsistent with information he had previously provided about his employment status. When confronted, the defendant acknowledged that he was out of work and stated that he had left some things out of his initial statement. The defendant then admitted that he was driving in the area described by the witness in her complaint--stating that he had observed a " pretty" brunette and that " he had been driving past to check out the pretty brunette." McCord warned the defendant that his conduct was alarming female joggers in the area and that he should cease driving in the area. The defendant appeared to understand McCord's warning.

On August 11, 2007, the five-foot-tall, ninety-pound, fourteen-year-old victim in this case was jogging on a secluded road in Litchfield. The defendant, who was driving in his truck with his dog, started following the victim, " State v. Chance, supra, 601-04.

" Following her usual jogging route, the victim turned off a main road and turned onto a dirt road. As she jogged down the dirt road, the defendant passed her in his truck three or four times. Feeling " uneasy, " the victim altered her route by turning off the dirt road and running a loop through a residential neighborhood. About twenty minutes later, the victim returned to the dirt road. As she jogged down the dirt road toward the main road, the victim jogged past the defendant in his pickup truck, which was stopped at a stop sign. The victim continued jogging and the defendant passed her in his truck. The defendant then drove up behind her, rolled down his window, and asked her if she " wanted to have a ride" or to " get in the car." The victim declined. The defendant again told the victim, " you can get in the car." The victim politely declined a second time and kept jogging.

The defendant then stopped his truck and left it idling. He got out and approached the victim. The victim " sprinted toward the other side of the road" and " started screaming." The defendant ran after the victim and grabbed her by her ponytail, causing her to trip and fall face down on the side of the road. The defendant then put both of his arms around the victim--one arm touching her stomach and the other arm touching her breasts--and tried to pick her up. The victim screamed and fought back. The defendant picked her up, but she was able to free herself and to throw herself back onto the ground. The defendant tried several times to pick up the victim but she continued to fight back and to scream.

The defendant then " covered [the victim's] mouth with his hand" and " pushed it down hard" and told her to " shut up." The victim " tried to bite him" and " tried to scream louder" but began " choking on [her] breath." The victim started " heaving" --unable to catch her breath and " choking every time [she] tried to breath in" --as the defendant was " [s]traddled" over her. The defendant then stepped back and asked the victim if she was okay. She told the defendant to " please leave." The defendant turned to walk away, and the victim ran across the road into a wooded area and hid underneath the bushes. Unable to reach her mother on her cell phone, the victim called 911.

Four state troopers arrived at the scene--Troopers Theresa Freeman, Steven Caltica, Uliano, and D'Elia. Freeman spoke with the victim, who described her struggle with the defendant. Trooper Laura Kraus noted that the victim's shirt was...