Labarge v. Warden

Michael LABARGE (Inmate #92280) v. WARDEN

No. CV144006756S

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

June 12, 2018

UNPUBLISHED OPINION

OPINION

Kwak J., Superior Court Judge

The petitioner initiated the present matter by way of a pro se petition for a writ of habeas corpus filed on October 27 2014, and amended by assigned counsel on July 21, 2017. The petitioner challenges his convictions in docket number HHB CR09-0043032-T, judicial district of New Britain, following a jury trial. The petitioner is presently serving a total effective sentence of sixty-five years of incarceration. The amended petition raises two claims: in count one, ineffective assistance of trial counsel premised on various deficiencies in count two, denial of due process and a fair trial. At the onset of trial the petitioner withdrew count two in its entirety and paragraph 25(B) of count one. The respondent’s return denies the petitioner’s material claims.

The parties appeared before this court on December 4, 2017, and February 16, 2018, for a trial on the merits. The petitioner entered copies of the criminal trial transcripts and copies of assorted other documents (e.g., medical records pleadings, court records, invoices, etc.). The respondent entered one exhibit into evidence- a copy of the Appellate Court’s decision on the petitioner’s direct appeal. The petitioner presented the testimony of the following witnesses: Attorney Christopher Eddy, the petitioner’s former defense counsel; and Dr. Andrew Meisler, the petitioner’s expert witness in forensic and clinical psychology.

For the reasons articulated more fully below, the petitioner’s claims are denied.

DISCUSSION

I. Underlying Facts

The Appellate Court’s decision in the petitioner’s direct appeal summarized the facts and procedural history. "The jury could have reasonably found the following facts. In the evening of August 29, 2009, the [petitioner] came across the victim, Cornell Johnson, selling crack cocaine to the [petitioner’s] girlfriend, Sherri Clarke. The [petitioner] then beat the victim with a baseball bat and stabbed him nineteen times with a knife, killing him. The [petitioner] then cut off the victim’s penis and left the murder scene with Clarke, taking the victim’s penis, identification, money, and drugs with him. The couple went to their apartment in New Britain where the [petitioner] flushed the victim’s penis down the toilet. The couple also showered, changed clothing, and smoked crack.

"In the early morning of August 30, 2009, the [petitioner] and Clarke returned to the murder scene and set fire to the victim’s car. Later that morning, the couple purchased two hand saws from The Home Depot and again returned to the murder scene. There, they used the hand saws to cut the victim’s body into fifteen pieces and they then hid the victim’s remains in the nearby woods.

"The [petitioner] subsequently was arrested in connection with the murder and dismemberment of the victim. The state charged the [petitioner] in a two-count, single long form information with murder in violation of § 53a-54a in count one and tampering with physical evidence in violation of § 53a-155(a)(1) in count two. Following a jury trial, the [petitioner] was convicted on both counts, ... and the court, D’Addabbo, J., sentenced the [petitioner] to a total effective sentence of sixty-five years incarceration." (Footnote omitted.) State v. Labarge, 164 Conn.App. 296, 298-300, 134 A.3d 259, cert. denied, 321 Conn. 915, 136 A.3d 646 (2016).

"At trial, the [petitioner] testified on his own behalf. He did not dispute killing the victim, cutting off the victim’s penis and flushing it down the toilet, burning the victim’s car, purchasing the hand saws and using them to dismember the victim’s body, and hiding the body parts in the woods. Instead, he testified that he happened to pass by the murder scene, where the victim was selling crack cocaine to Clarke, and, believing that the victim was sexually assaulting Clarke, went berserk and ‘blacked out.’ The court instructed the jury on the defense of others; see General Statutes § 53a-19; and extreme emotional disturbance affirmative defenses along with the lesser included offenses of intentional manslaughter in the first degree, reckless indifference manslaughter in the first degree, and manslaughter in the second degree." Id., 299 n.1.

II. Ineffective Assistance of Counsel Standard

"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [ 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution ... It is axiomatic that the right to counsel is the right to the effective assistance of counsel ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ... To satisfy the prejudice prong, [the petitioner] must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different ... The claim will succeed only if both prongs are satisfied ... Gonzalez v. Commissioner of Correction, 308 Conn. 463, 470, 68 A.3d 624, cert. denied sub nom. Dzurenda v. Gonzalez, __ U.S. __, 134 S.Ct. 639, 187 L.Ed.2d 445 (2013). Consequently, [i]t is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier ... Valeriano v. Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988); see also Strickland v. Washington, supra, 697 (a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant) ... Small v. Commissioner of Correction, 286 Conn. 707, 713, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008)." (Emphasis omitted; internal quotation marks omitted.) Sanchez v. Commissioner of Correction, 314 Conn. 585, 605-06, 103 A.3d 954 (2014).

"In order to prevail on a claim of ineffectiveness of counsel, the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome ... [T]he question is whether there is a reasonable probability that, absent the [alleged] errors, the [factfinder] would have had a reasonable doubt respecting guilt ...

"In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or the jury ... Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support ... [T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged ... The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 688-89, 51 A.3d 948 (2012).

III. Count One- Ineffective Assistance by Attorney Eddy

The petitioner makes several allegations in count one, paragraph 25, subsections A, C, D, and E.^[1] As alleged by the petitioner, Attorney Eddy failed to: (A) adequately plead, prove, and argue that the two counts in the information should be severed into two trials because there was important testimony to give concerning one count and a strong need to refrain from testifying in the other count; (C) adequately present available medical records and medical testimony sufficient to support a diminished capacity jury charge; (D) adequately present the affirmative defense that the petitioner suffered from a lack of capacity due to mental illness or defect, pursuant to General Statutes § 53a-13; and (E) adequately advocate for the petitioner during the sentencing.

(A) Failures re severing the two counts of the information

The first area of alleged deficient performance by Attorney Eddy is that he failed to adequately plead, prove, and argue that the two counts in the information should be severed into two trials because there was important testimony to give concerning one count and a strong need to refrain from testifying in the other count. The only witness to present meaningful evidence in support of this claim was Attorney Eddy.

The first claim on the petitioner’s direct appeal was "that the court abused its discretion by denying his motion to sever the murder count from the tampering count. His claim [was] twofold. The [petitioner] first relie[d] on State v. Boscarino, 204 Conn. 714, 723, 529 A.2d 1260 (1987) to argue that the denial of his motion to sever prejudiced his right to a fair trial because the jury, after hearing the facts underlying the tampering charge, which he argues were particularly brutal, violent, and shocking, could not fairly consider his guilt as to the murder charge. In addition,...