Smith v. Commissioner of Correction

Brian Smith v. Commissioner of Correction

No. CV164008135S

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

November 6, 2019

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Bhatt, Tejas, J.

MEMORANDUM OF DECISION

Bhatt J.

The petitioner, Brian Smith, alleges that his convictions are illegal because he received ineffective assistance of trial and appellate counsel and because he is actually innocent. This court does not agree and, therefore, denies the petition.

I. FACTUAL BACKGROUND

In docket numbers CR14-0104814-S and MV14-0372091-S, the petitioner was charged with operating a motor vehicle while under the influence of intoxicating liquor or any drug in violation of General Statutes § 14-227a(a)(1), operating a motor vehicle while having an elevated blood alcohol content in violation of General Statutes § 14-227a(a)(2), possession of a small amount of a cannabis-type substance in violation of General Statutes § 21a-279a(a), improperly parking a motor vehicle in violation of General Statutes § 14-251, operating a motor vehicle without carrying an operator’s license in violation of General Statutes § 14-213, and making a false statement in the second degree in violation of General Statutes § 53a-157b(a).

Additionally under docket numbers CR14-0104814-S and MV14-0372091-S, the petitioner was charged via a part B information as being a third-time offender in violation of § 14-227a(g)(3). Finally, under docket number CR15-016544-S, the petitioner was charged with two counts of tampering with a witness in violation of General Statutes § 53a-151(a).

The petitioner elected a jury trial with respect to the charges of operating a motor vehicle while under the influence of intoxicating liquor or any drug, operating a motor vehicle while having an elevated blood alcohol content, making a false statement, and tampering with a witness. He elected a court trial with respect to the infractions of improperly parking a motor vehicle and operating a motor vehicle without carrying an operator’s license, and the charge of violation of possession of a small amount of a cannabis-type substance. The matters were consolidated for trial.

The jury found the petitioner guilty of all charges, as did the court, Oliver, J. The petitioner then entered a plea of nolo contendere to the charge of being a third time offender as alleged in the part B information, which was accepted by the court. The verdict of guilty of operating a motor vehicle while having an elevated blood content was vacated by the court prior to sentencing pursuant to State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013). The court sentenced the petitioner to a total effective sentence of fifteen years’ incarceration, execution suspended after seven years, followed by five years’ probation.

The petitioner appealed his convictions. On appeal, he challenged his conviction for operating while under the influence and only one of his tampering with a witness convictions. He claimed that "(1) the evidence was insufficient to convict him of operating a motor vehicle while under the influence of intoxicating liquor or any drug and (2) the court erroneously admitted certain evidence relating to the witness tampering count." Our Appellate Court affirmed his convictions. State v. Smith, 179 Conn.App. 734, 738, 181 A.3d 118, cert. denied, 328 Conn. 927, 182 A.3d 637 (2018).

The petitioner filed the instant petition for writ of habeas corpus on or about June 8, 2016. Counsel filed an amended petition on his behalf, raising claims in three categories. First, the petitioner claims that trial counsel was ineffective for failing to: a) "sufficiently investigate the circumstances involved in the State’s case, specifically as to the background of the State’s witnesses, the physical condition of the petitioner at the time of the arrest and the background of the petitioner prior to the arrest"; b) "retain an expert medical witness to review the effects of intoxication on the person of the petitioner, if any"; c) "interview witnesses of the State, although trial counsel knew the names and addresses of all witnesses prior to trial"; d) "adequately investigate the history of malfunctions and servicing in regard to the mechanical condition of the petitioner’s motor vehicle prior to and at the time of petitioner’s arrest"[; ] e) file a motion to suppress, motion in limine or otherwise challenge the evidence and/or testimony of the arresting Officer in regard to the Officer’s recording that the petitioner ‘refused’ to submit to a breath test without the petitioner actually stating his intention of a ‘refusal’ to submit to same [sic], as provided within C.G.S. section 14-227a and 14-227b"; and f) "object to improper comments made by the prosecutor during closing arguments."

Counsel alleged that appellate counsel was ineffective for various reasons related to the grounds alleged against trial counsel. In count three, counsel asserted that the petitioner is actually innocent. The court heard testimony from several witnesses. The parties submitted exhibits and the petitioner submitted a posttrial brief.

II. FINDINGS OF FACT

According to our Appellate Court, the petitioner’s jury could reasonably have found the following facts:

At approximately 1:50 a.m. on March 7, 2014, James Grimes, a state police trooper, was patrolling near the intersection of Route 44 and Route 195 in Mansfield when he observed a stationary motor vehicle in the eastbound travel lane of Route 320, which intersects with Route 195 a short distance from the intersection of Route 44 and Route 195. The motor vehicle, a tan colored Volvo, was impeding travel. Grimes observed the vehicle for a few minutes and saw that the vehicle’s brake lights were on and that the vehicle remained stationary.

Grimes positioned his police cruiser behind the stationary vehicle and activated his vehicle’s emergency lights. At that time, he observed that "the brake lights [on the stationary vehicle] went off because you could see the parking lights go on as the vehicle was shifted into park." Grimes exited his cruiser and knocked on the passenger window. The sole occupant and operator of the vehicle, the defendant, rolled down the passenger window. Immediately, Grimes smelled burnt marijuana. Grimes asked the defendant "what was going on," to which the defendant replied, "I’m just stopped," and that he was trying to use his cell phone. Grimes, after concluding that the defendant was not experiencing a medical issue and that there were not any mechanical issues with the vehicle told him that he could have chosen a more suitable location. Grimes then asked the defendant for his driver’s license and his vehicle’s registration. The defendant, however, did not have his driver’s license with him.

While the defendant was searching for his license and registration, Grimes asked him several questions to gauge whether he was impaired. Grimes observed that the defendant’s speech was slurred and that his eyes were bloodshot and "glazed over ..." The defendant’s responses were "kind of slow and kind of spacy," and the defendant was "struggling" to understand or was not fully engaged in the conversation. For example, the defendant first told Grimes that he was traveling from Willimantic, but then told Grimes that he was coming from his place of employment at a restaurant in Waterford.

Grimes walked to the driver’s side of the defendant’s vehicle and the defendant complied with his request to roll down the window. Grimes smelled not just burnt marijuana, but also alcohol. Grimes asked the defendant if he had been drinking or smoking marijuana, and the defendant denied that he had used either substance.

Grimes then asked the defendant, who was still in the vehicle, to complete two tests to gauge his sobriety and coordination. The defendant was asked to recite specified portions of the alphabet and to complete a "finger dexterity test" that required him to count aloud while touching each of his fingertips with his thumb. The defendant failed these tests.

Grimes returned to his cruiser to inform his dispatcher that he was going to administer standardized field sobriety tests to the defendant. When he walked in the direction of the defendant’s vehicle, he observed the defendant quickly "shoving" candy into his mouth. In Grimes’ experience, "this was a way for people that are driving under the influence to try and mask their breath or try to get something in their system that’s going to dilute the alcohol concentration in their system." Grimes instructed him to stop.

At Grimes’ direction, the defendant exited the vehicle. He moved slowly and kept his right hand closed. Grimes ordered him to open his hands and to keep them raised, but the defendant did not comply fully as he continued to keep his right hand closed. Grimes opened the defendant’s hand to reveal a small brown pipe. The pipe, like the defendant’s vehicle, smelled like burnt marijuana. The pipe contained marijuana residue.

Grimes then administered three standard field sobriety tests, including the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand test. The defendant failed all of these tests.

At 2:10 a.m., Grimes arrested the defendant after which the defendant was handcuffed, seated in the police cruiser, and transported to the state police barracks for Troop C in Tolland. After Grimes advised the defendant of his Miranda rights, the defendant pleaded with Grimes to let him go because "he didn’t need this," and that he was worried about losing his job. He stated that "he just was going to see this girl and just wanted to ... sleep it off ..."

At the state police barracks, Grimes searched the

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