Superior Court of Connecticut, Judicial District of Tolland, Somers, Geographic Area 19
MEMORANDUM OF DECISION
Stanley T. Fuger, Jr., Judge.
The petitioner initiated this matter by way of a pro se petition for a writ of habeas corpus, filed on July 20, 2012, amended by assigned counsel on October 28, 2014. The amended petition raises claims in seven counts: (1) denial of a fair trial and an impartial jury; (2) denial of due process and a fair trial because the prosecuting authority failed to disclose material exculpatory evidence; (3) denial of due process and a fair trial because the prosecuting authority knowingly presented and failed to correct false testimony; (4) ineffective assistance of trial counsel, Attorney Claude Chong, during plea negotiations; (5) ineffective assistance of trial counsel; (6) ineffective assistance of appellate counsel, Attorney John Drapp III; and (7) denial of a public trial. The respondent's return denies the petitioner's material allegations and entitlement to habeas corpus relief. The return also raises affirmative defenses to counts one through four and count seven. The petitioner's reply to the return denies the defenses raised by the respondent.
The matter proceeded to a trial on the merits on February 9, 10 and 23, 2015. Testimony was presented by the following witnesses: Scott Murphy, the trial prosecutor; Claude Chong, trial defense counsel; John Malone, who prosecuted Bethza Meletrich, the petitioner's cousin; Anthony Marcano, the petitioner's cousin; Bethza Meletrich; Guiellermo Meletrich, the mother of the Marcano brothers and the petitioner's and Bethza's aunt; Bonnie LaRose, the Official Court Reporter for the Judicial District of New Britain; the petitioner; John Drapp III, appellate counsel on direct appeal; and Adam Marcano, the petitioner's cousin and brother of Anthony Marcano. The petitioner entered various documents and videos into evidence.
The parties again appeared before this court for supplemental arguments after the Supreme Court released its decision in Lapointe v. Commissioner of Correction, 316 Conn. 225, 112 A.3d 1 (2015), as to whether that decision impacted the present matter, if at all.
For the reasons articulated more fully below, judgment shall enter denying the petition for a writ of habeas corpus.
CRIMINAL CONVICTION AND POST-CONVICTION PROCEEDINGS
In docket number CR07-0237770, Judicial District of New Britain, the petitioner was charged with one count of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), one count of conspiracy to commit robbery in the first degree in violation of General Statutes § § 53a-48 and 53a-134, one count of larceny in the first degree in violation of General Statutes § 53a-122(a)(2), and one count of conspiracy to commit larceny in the first degree in violation of General Statutes § § 53a-48 and 53a-122. The petitioner, represented by Attorney Claude Chong, proceeded to a jury trial. The jury returned verdicts of guilty on all counts, finding the petitioner guilty of counts one and three as a co-conspirator on the theory of vicarious liability. The petitioner appealed from the judgment of conviction; however, the appeal was withdrawn.
Based on this court's review of the criminal trial transcripts, the jury reasonably could have found the following facts. On Wednesday, November 21, 2007, the day before Thanksgiving, the McDonald's restaurant near the New Brite Plaza area of New Britain had been open for business. The public could enter and exit the restaurant from two doors, one at the front of the building and the other on the side, that are unlocked during business hours and are locked when the restaurant is closed. The side door latch did not work properly and tape was placed over the latch to allow the door to open during business hours. At the end of the day, when the side door needed to be secured, the tape would be removed so that the latch would prevent the door from opening.
Shortly before midnight, when both the inside of the restaurant and the drive-through window stopped transacting business, the employees then onsite prepared to close the restaurant. Among those employees were Assistant Manager Angel Echevarria and Bethza Meletrich. Echevarria's responsibilities at closing included collecting the eight cash register drawers in a safe located in a small office in the back of the restaurant. The proceeds from the day's sales, gift cards, coupons, the register drawers themselves with $100 of startup money for the next business day and any other valuables would be secured in the safe. The cash proceeds from sales and gift cards were placed in bank deposit bags and then secured inside the back office safe.
Although it was normally Echevarria's responsibility to lock the two outside doors, on the evening of November 21, 2007, he was training another manager to count the money in the registers and asked Bethza Meletrich to lock the two outside doors. Although Bethza Meletrich initially locked both doors, which involved removing the tape on the side door's latch, she returned to replace the tape on the side door latch. One of the restaurant's surveillance cameras shows Bethza Meletrich on her cellphone as she walked past the registers to the side door. Shortly thereafter, Bethza Meletrich walked past the registers again and then three men, later described by Echevarria as being light skinned and of normal height and average size,  who were dressed in dark hooded sweatshirts with the hoods pulled over their heads, and whose faces were concealed by dark ski masks, entered the McDonald's restaurant through the side door and made their way to the back office.
Two of the men brandished handguns, one chrome with a wooden handle and the other black. One of the men called Echevarria by his nickname, Sidio, a name either uncommon or unique to Echevarria, but known to employees of the McDonald's including Bethza Meletrich. After one of the men asked Echevarria where the money was located, he told them in the office safe. One of the robbers stacked either seven or eight of the register drawers and carried the stack, described by Echevarria as heavy and difficult to carry, out of the restaurant. Echevarria called 911 after the three men exited the restaurant and then went to the side door and observed a car driving away. Three of the surveillance cameras in the restaurant captured footage of the robbery.
The police responded to the restaurant and began their investigation, which included interviewing all employees. Although Bethza Meletrich initially denied any involvement, she later gave a statement to New Britain police officers admitting her involvement in the robbery. In her statement, dated November 26, 2007, Bethza Meletrich indicated that she met Adam Marcano and the petitioner, whose nickname was " Rome" or " Romeo, " before she went to work. They asked her to leave the door open at closing time so that they could rob the restaurant. According to Bethza Meletrich, she was first offered money for her cooperation, which she declined, and then her two cousins threatened her and/or her girlfriend. Bethza Meletrich informed the police that the petitioner was armed with a silver gun that had a brown handle, which he displayed to her while it was tucked into his waistband. The petitioner and Adam Marcano, accompanied by a third person unknown to Bethza Meletrich,  entered the restaurant shortly before midnight through the side door she had left unlocked.
Also on November 26, 2007, the police executed a search warrant for one of the apartments in, as well as the basement of, 20 Acorn Street, New Britain, a multi-family dwelling approximately six blocks, or less than one mile, from the McDonalds restaurant that was robbed. The petitioner was at the apartment when the police executed the search warrant. Although the Marcano brothers were not present at that time, the police found items belonging to both Adam and Anthony Marcano in the apartment. The police investigation determined that the petitioner and both Marcano brothers lived at 20 Acorn Street on the first floor.
The police also found three black hooded sweatshirts in the apartment. After gaining access to the basement from the apartment, the police searched the basement and found: two money deposit bags, one of which contained several rolls of coins and loose quarters; a plastic bag containing three black ski masks, one pair of black fleece gloves and one pair of brown knit gloves; and three cash register drawers, one of which contained a McDonald's coupon. Subsequently, in January 2008, the police received a phone call from the landlord of 20 Acorn Street apprising the police that other items had been found concealed under a subfloor of the basement. The police returned to 20 Acorn Street and seized five additional cash register drawers, one of which had a McDonald's sticker on it, that had been concealed under the subfloor.
Forensic evidence recovered included finger and palm prints from the plastic bag that contained the masks and gloves, as well as DNA from two of the ski masks. Three of the finger prints--the right index, the right thumb, and the left thumb--were identified as belonging to Anthony Marcano. A DNA sample obtained from the petitioner allowed a comparison to made with DNA from two of the masks. One mask interior had DNA from at least three individuals; the petitioner was determined to be a contributor to that DNA profile. As to this mask (Submission No. 9-S-1), an individual could be included statistically in this profile at the ratio of 1 in 120, 000 African Americans, 1 in 69, 000 Caucasians and 1 in 66, 000 Hispanics. A DNA sample from another mask's exterior had DNA from at least four individuals; the petitioner was determined to be a contributor to that DNA profile. As to that mask (Submission No. 9-S-2), an individual could be included statistically in this profile at the ratio of 1 in 390 African Americans, 1 in 120 Caucasians and 1 in 170 Hispanics. Transcript (December 4, 2009), pp. 9-11.
The state contended that the petitioner was guilty of the robbery and larceny in the first, degree charges either as a principal offender or as an accessory to another participant in the crime. Additionally, the court instructed the jury on the robbery and larceny in the first degree charges as to the theory of vicarious liability. Thus, if the jury found beyond a reasonable doubt that the state had proven all elements of the conspiracy to commit robbery and larceny in the first degree charges, but that the state had not proven that the petitioner was a principal or accessory as the robbery and larceny charges in counts one and three, then the jury could consider whether the petitioner was criminally liable for the criminal acts of the other co-conspirators under vicarious liability. The jury was charged accordingly.
The jury returned guilty verdicts on all counts. Specifically, the jury found the petitioner guilty of both the robbery and larceny in the first degree charges as a co-conspirator under the theory of vicarious liability.
At his sentencing, the petitioner at length addressed the court. The petitioner acknowledged his presence and participation in the conversation that involved the planning of the robbery, but denied involvement in the commission of the robbery. The pre-sentence investigation (PSI) report prepared for the court showed that the petitioner was arrested and charged with three additional robberies committed in New Britain, with all four robberies occurring within a one-week span of each other. These other robberies were also committed by a group of three individuals dressed in dark clothing, wearing masks, and one or more of the perpetrators armed with handguns. The police questioned the petitioner about the other three robberies and he told them that he was present during the commission of the robberies, but had been an inactive individual. Video footage from those incidents belied the petitioner's assertion that he had been an inactive participant. The petitioner in his own words to the sentencing court admitted involvement in the planning and, when asked if he thought that he was less guilty because he did not go into the McDonald's, responded: " No, I am not saying I'm not guilty." Transcript (February 5, 2010), p. 24.
The court, Espinosa, J., sentenced the petitioner on February 5, 2010 as follows: count one (robbery in the first degree)--eighteen years of incarceration, followed by two years of special parole; count two (conspiracy to commit robbery in the first degree)--five years of incarceration, followed by five years of special parole, consecutive to count one, for a total effective sentence on counts one and two of twenty-three years of incarceration, followed by five years of special parole; count three (larceny in the first degree)--eighteen years of incarceration, concurrent with counts one and two; and count four (conspiracy to commit larceny in the first degree)--merged with count two. The petitioner's total effective sentence on all counts was twenty-three years of incarceration, followed by five years of special parole. The petitioner appealed from the judgment of conviction, but withdrew the appeal.
I. Count One--Violation of Constitutional Right to a Fair Trial and an Impartial Jury
The petitioner's first claim is that his constitutional right to a fair trial and an impartial jury was violated when a juror was dismissed. The respondent's return asserts procedural default as an affirmative defense to this claim. There was no evidence whatsoever presented in support of this claim; therefore, the court deems the claim in count one to have been abandoned. See, e.g., Wooten v. Commissioner of Correction, 104 Conn.App. 793, 801, 936 A.2d 263 (2007) (claim deemed " abandoned because the petitioner failed to present any evidence in support of his position"), cert. denied, 289 Conn. 911, 957 A.2d 868 (2008).
Furthermore, although a juror was excused during the deliberations and substituted with one of the alternate jurors, the jury was instructed to begin deliberations anew. There is no evidence that these new deliberations, which ultimately resulted in the guilty verdicts, were somehow suspect or violated the petitioner's constitutional rights. See, e.g., State v. Carter, 34 Conn.App. 58, 93-94, 640 A.2d 610 (1994) (" An alternate juror, once selected to be part of the regular jury, becomes part of the regular jury 'as though such juror had been a member of the regular panel from the time when [the case] was begun.' General Statutes § 54-82h(c).").
II. Count Two--Violation of Constitutional Right to Due Process and a Fair Trial by the Prosecution's Failure to Disclose Material Exculpatory Evidence
The petitioner next alleges that his constitutional right to due process and a fair trial was violated when the prosecutor failed to disclose material exculpatory evidence. More specifically, the petitioner alleges that Bethza Meletrich, one of the petitioner's co-defendant's who was also charged as a co-conspirator, was offered to have her criminal charges resolved in a more favorable manner in exchange for her testimony. The petitioner further alleges that the state failed to disclose this agreement to the defense. The respondent's return asserts the affirmative defense of procedural default and the petitioner's reply denies that he has procedurally defaulted.
Scott Murphy, the trial prosecutor, testified in the habeas trial that Bethza Meletrich was represented by counsel and that he talked to her. The only agreement, if any, was that there would be no plea discussions until the cases involving the petitioner and the Marcano brothers were resolved. Attorney Murphy testified that he would have disclosed any deal between the state and Bethza Meletrich.
Attorney Chong testified that no one told him that there was a deal between Bethza Meletrich and the state. Although she was a cooperating witness, Bethza Meletrich was not offered a particular sentence by the state, and Attorney Chong was not aware of any offer and also did not believe there to be an offer. Any benefit that she would gain would be as a result of her cooperation being brought to the attention of the judge who eventually would sentence Bethza Meletrich. Additionally, it was Attorney Chong's understanding that Bethza Meletrich's cooperation would not result in the state making a specific recommendation to the sentencing judge.
John Malone, who prosecuted both Anthony Marcano and Bethza Meletrich, also testified in the habeas trial. According to Attorney Malone, he made no promises to Bethza Meletrich and there was no recommendation as to a specific sentence, although her cooperation would be made known to the sentencing judge. Attorney Malone also testified that he did not discuss these matters with Attorney Murphy.
At the habeas trial, Bethza Meletrich testified that she and the prosecutor did not speak about the charges and that there was no arrangement with the state. This testimony is entirely consistent with the testimonies of both of the aforementioned prosecutors and Attorney Chong, as well as the testimony presented by Bethza Meletrich during the criminal trial. See Transcript (December 2, 2009), pp. 39-40; 85-88.
At her plea proceeding, which occurred almost four years after the petitioner's criminal trial, Attorney Malone informed the court, D'Addabbo, J., that the state was not recommending any particular sentence as a result of Bethza Meletrich's agreement to cooperate with the state in the case against the petitioner and her offer to also cooperate in the case against Adam Marcano. Transcript (November 26, 2013), p. 3. Judge D'Addabbo described the plea as " . . . really the lack of a [sic] agreement but it will be an agreement with the Court and your decision to plead guilty, " Id., p. 5, and later reiterated that there was no agreement for any specific term of years. Id., p. 8.
Judge D'Addabbo then ordered a presentence investigation (PSI) report and stated the following to Bethza Meletrich: " After the completion of the report, reviewing the report, hearing from the State, hearing from your counsel, if the Court feels that the appropriate sentence is a sentence of suspended--some period of time suspended with a period of probation--amount has not been determined, but the essential nature is that there is some period of time is suspended and probation without incarceration, that's the agreement, you would not have the ability to withdraw your guilty plea. Do you understand that?" Id., pp. 8-9. Bethza Meletrich answered in the affirmative. The court then continued: " And on the other hand, if the Court, me or Judge Hadden, whoever does the sentencing, reviews it and determines that based on what its read or what its heard, then feels that some ...