Madera v. Comm'r of Corr.

221 Conn.App. 546

302 A.3d 910

Robert MADERA v. COMMISSIONER OF CORRECTION

AC 45321

Appellate Court of Connecticut.

Argued February 1, 2023

Officially Released September 12, 2023

Judie Lynn Marshall, assigned counsel, for the appellant (petitioner).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva Lenczewski, former senior assistant state's attorney, for the appellee (respondent).

Clark, Seeley and DiPentima, Js.

SEELEY, J.

On the granting of his petition for certification to appeal, the petitioner, Robert Madera, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus, which alleged a claim of ineffective assistance of trial counsel. ¹ On appeal, the petitioner claims that the court improperly concluded that he failed to sustain his burden of establishing that he was prejudiced by counsel's alleged deficient performance. We agree with the habeas court's conclusion and, accordingly, affirm its judgment.

The following facts, as set forth by this court in the petitioner's direct criminal appeal, and procedural history are relevant to our resolution of the petitioner's claim. "In early June, 2011, brothers Shawn Kinnel [Shawn] and Marquis Kinnel [Marquis] ² decided to rob two Waterbury drug dealers, D.O. and his roommate, I.T. In order to ascertain where D.O. and I.T. resided at that time, the Kinnels approached the [petitioner], who was D.O.’s first cousin.

"On the night of June 13, 2011, the trio drove to D.O.’s and I.T.’s condominium complex [complex] and parked their [Nissan Altima (Nissan)] on a nearby side street. The Kinnel brothers got out of their car, retrieved two handguns from under the hood of the vehicle, and walked into the complex. The [petitioner] remained inside the vehicle, but moved to the driver's seat and waited for the Kinnels to return.

"Inside the complex, the Kinnels entered D.O.’s and I.T.’s condominium. At that time, D.O. and I.T. were out buying groceries. Once D.O. and I.T. returned, the Kinnels seized them at gunpoint and forced them to lie on the floor with their shirts pulled over their heads to block their vision.

"The Kinnels then searched D.O., I.T., and the condominium, taking currency, drugs, jewelry, cell phones, and other valuables. During the search of the condominium, Marquis ... encountered D.O.’s [pregnant] girlfriend, D.M., in her bedroom downstairs. [Marquis] ordered D.M. to take off her clothes at gunpoint and then sexually assaulted her. Thereafter, [Marquis] ordered D.M. to put on a bathrobe, brought her upstairs, and forced her to lie down on the floor next to D.O. and I.T. with her head covered to block her vision. While she was lying on the floor upstairs, D.M. was sexually assaulted again. Having collected all of the valuables, the Kinnels then fled the condominium in a [Jeep] they had stolen from D.O. The [petitioner] followed them, driving the [Nissan] .... After the perpetrators had left, D.O. called the police.

"On June 14, 2011, [the] police tracked one of the stolen cell phones to a Waterbury barbershop. When officers converged there, they found the [petitioner] and Marquis ... inside. Thereafter, the [petitioner]was arrested on an unrelated outstanding warrant and transported to the Waterbury police station, where he eventually gave a voluntary, signed statement detailing his involvement in the crime. In the statement, the [petitioner] attempted to minimize his involvement, claiming that he did not know about the Kinnels’ plan regarding D.O. and I.T." (Footnote added; footnote omitted.) State v. Madera , 160 Conn. App. 851, 853–55, 125 A.3d 1071 (2015).

After trial, on June 1, 2012, a jury found the petitioner guilty of conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-101 (a) (3), burglary in the first degree as an accessory ³ in violation of General Statutes §§ 53a-8 and 53a-101 (a) (3), robbery in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-134 (a) (4), and home invasion as an accessory in violation of General Statutes §§ 53a-8 and 53a-100aa (a) (1). Id., at 855, 125 A.3d 1071. The jury found the petitioner not guilty of conspiracy to commit robbery in the first degree in violation of §§ 53a-48 (a) and 53-134 (a) (4) and conspiracy to commit home invasion in violation of §§ 53a-48 (a) and 53a-100aa (a) (1). Id. He subsequently was sentenced to twenty-five years of incarceration, execution suspended after twenty years, followed by five years of probation. Id., at 856, 125 A.3d 1071. His sentence later was revised to a total effective sentence of nineteen years of incarceration as a result of this court's decision in his direct criminal appeal. ⁴

In February, 2016, the petitioner filed a petition for a writ of habeas corpus. The petitioner, through counsel, filed an amended petition on February 25, 2019, which is the operative petition. He alleged that his criminal trial counsel, Raymond Kotulski, provided ineffective assistance. The petitioner, who had not been charged in connection with the sexual assaults of D.M., ⁵ specifically alleged that Kotulski was ineffective because he did not seek to preclude or object to all testimony and evidence relating to the sexual assaults that took place during the home invasion. ⁶

The court, Bhatt, J ., held a trial on the habeas petition on February 4, 2020, and April 28, 2021, at which three witnesses testified: Frank Riccio, Jr., the petitioner's legal expert; Glenn Falk, his appellate counsel on direct appeal; and Kotulski. The petitioner's habeas counsel presented Riccio with a hypothetical situation in which Riccio represented a getaway driver accused of being a coconspirator in a home invasion and one of the coconspirators sexually assaulted someone inside, but the client himself was not charged with sexual assault. Riccio testified that, in his opinion, if an attorney did not object to the evidence in question, that attorney would not meet the standard of care expected of a reasonably competent defense attorney.

Falk testified that, in preparing for the petitioner's direct criminal appeal, he reviewed the transcripts and noticed that the sexual assaults were referred to numerous times and "became a drumbeat." He further testified that, although he would have liked to have raised a claim on appeal challenging the admission of the sexual assault evidence at trial, he was unable to do so because "there was no objection to any of [it]."

Kotulski testified that he recalled that he wanted to exclude the sexual assault evidence. He explained: "I mean, if someone hears a pregnant woman is raped in her home, they might not see the rest of the facts of the case and might just see that." Kotulski could not recall whether the sexual assault evidence ultimately was introduced at trial, but when asked whether he objected to it, he stated: "I'm pretty positive I did I would think. I know I didn't want it to end up with the jury ...." He later testified: "I know I objected to it in some way. What the record says, I don't know, but I know that ... in some way I objected to it." ⁷

The parties subsequently filed their posttrial briefs with the court. The petitioner argued, inter alia, that Kotulski was ineffective for failing to object to the sexual assault evidence at trial because the evidence was irrelevant and unduly prejudicial and, therefore, inadmissible. He further argued that Kotulski's deficiencies caused him prejudice because the sexual assault evidence "turned [the] jury against him" and, consequently, there existed a reasonable probability that, but for the admission of the evidence, there would have been a different outcome at trial. ⁸ The respondent, the Commissioner of Correction, argued that Kotulski was not ineffective because the evidence was highly probative, there was no sign that the evidence "[distracted] or aroused the jurors’ emotions, hostilities, or sympathies," and "the jury proved its impartiality by finding the petitioner not guilty on two of the charged counts."

On January 5, 2022, the court issued a memorandum of decision denying the petitioner's petition for a writ of habeas corpus. The court agreed with the petitioner that Kotulski was deficient for failing to seek to preclude or object to the sexual assault evidence. It reasoned: "The record does not reflect any efforts by Kotulski to preclude evidence of the sexual assault and pregnancy, nor did he make objections when they were mentioned during the entirety of the trial. Although Kotulski testified in the habeas trial that he somehow objected and was overruled, the record does not support that contention. The court concurs with Riccio's assessment that reasonably competent defense counsel would seek to preclude ... or object to evidence of the sexual assault, which was not a charged offense, and pregnancy. There is no tactical or strategic basis that has been shown [for] why Kotulski, who viewed the sexual assault and pregnancy [evidence] as not relevant to the charges and potentially inflammatory, did not file a motion in limine or object during the trial. Consequently, the court concludes that [the petitioner] has satisfied the first [prong of] Strickland [v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] ... by proving Kotulski rendered deficient performance."

Nevertheless, the court concluded that the petitioner had failed to establish that he was prejudiced by Kotulski's deficient performance. It noted that "[t]he jury had before it significant evidence from which it could conclude that the state had met its burden of proof .... This came through the testimony of the victims, D.O., D.M. and I.T., as well as through [the petitioner's] own statement to police and his testimony before the jury. Furthermore, the jury convicted [the petitioner] of four of the six charged offenses and...