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Otto v. Comm'r of Corr.

Appellate Court of Connecticut

November 10, 2015

KENNETH J. OTTO, SR.
v.
COMMISSIONER OF CORRECTION

         Argued September 15, 2015

          Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Sferrazza, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court.

          SYLLABUS

         The petitioner, who had been convicted of murder and tampering with evidence, sought a writ of habeas corpus, claiming that his trial and appellate counsel had provided ineffective assistance. The habeas court rendered judgment denying the petition and, thereafter, granted the petition for certification to appeal, and the petitioner appealed to this court. Held :

         1. This court found unavailing the petitioner's claim that his trial counsel had rendered deficient performance by inducing a forensic anthropologist for the state to testify that the victim's death was a homicide, as that testimony was an unexpected departure from that of a state medical examiner who previously had testified that it was impossible to determine the cause or manner of death; moreover, the anthropologist testified that his opinion was a personal one rather than one based on a reasonable degree of medical certainty, that there was no way to tell if the death occurred where the remains were found, and that he was unable to point to any physical evidence indicating that the manner of death was homicide.

         2. The petitioner could not prevail on his claim that his appellate counsel rendered ineffective assistance in failing to challenge on appeal the trial court's denial of a motion to suppress certain evidence that the police had obtained during a warrantless search of his property; appellate counsel's decision not to challenge that ruling was a strategic tactic that this court would not second-guess, as none of the highly incriminating evidence against the petitioner was obtained as a result of that search, the search was justified under the emergency doctrine, and the petitioner produced no expert testimony critical of appellate counsel's decision.

         David J. Reich, for the appellant (petitioner).

         Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Angela R. Macchiarulo and Kelly Masi, senior assistant state's attorneys, for the appellee (respondent).

         Gruendel, Beach and Borden, Js. GRUENDEL, J. In this opinion the other judges concurred.

          OPINION

Page 15

          [161 Conn.App. 211] GRUENDEL, J.

          The petitioner, Kenneth J. Otto, Sr., appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. He claims that the court improperly concluded that he had not established that his trial counsel and his appellate counsel rendered ineffective assistance. We affirm the judgment of the habeas court.

         This case involves the murder of an exotic dancer in 2007. As recounted by our Supreme Court in the petitioner's direct appeal, " [t]he victim, who was last seen on the afternoon of March 14, 2007, worked as a dancer at Kahoots, an exotic dance club located in [161 Conn.App. 212] Vernon, where the [petitioner] was a frequent patron up until the time that the victim disappeared. Beginning several weeks prior to the victim's disappearance, the [petitioner] and the victim initiated a personal relationship outside of her work at Kahoots. . . . On the afternoon of March 14, 2007, the victim left

Page 16

her parents' house, where she and her boyfriend lived, indicating to her boyfriend that she was going to work and meeting up with a client who owned a large parcel of property and drove a black truck. The victim did not show up for work that evening, nor did she return home that night, and no one from her family had any further contact with her after she left the house that afternoon.

         " The victim's family, after becoming concerned about the lack of contact from her, filed a missing persons report with the East Hartford police department on March 16, 2007. Upon investigation of the missing persons report, the police identified the [petitioner] as an individual who potentially had information regarding the then missing victim, on the basis of a voice mail that the [petitioner] had left for the victim prior to her disappearance, and a telephone call that the [petitioner] had made to the victim's house telephone number after her disappearance. First, the victim's family discovered a voice mail on the victim's cell phone from 'Kenny' that was left on the morning of March 14, 2007, stating that the caller wanted to get together with the victim. Second, the [petitioner] had telephoned the victim's house telephone on March 17, 2007, and when the victim's mother answered, the [petitioner] said: 'Shamaia, call your mom and dad. They [are] worried about you.' He would not identify himself and hung up when the victim's mother asked who was calling, but the [petitioner] did identify himself when the victim's father returned the call to the number revealed by the caller identification feature on the house telephone. The [petitioner] also spontaneously, and without explanation, [161 Conn.App. 213] stated to the victim's father during this call that he had a physical problem that rendered him unable to be sexually active.

         " The victim's family provided the police with the information about these calls placed by the [petitioner], and Raymond Cheverier, an East Hartford police officer, followed up with the [petitioner] to see if he had any information about the then missing victim. After being informed that the victim had been reported missing, the [petitioner] told Cheverier that he had given the victim a ride to another Kahoots exotic dance club located in East Hartford around 4:30 p.m. on March 14, 2007, but had not seen her since, and that he was sick that evening and had stayed in bed for the next three days. The [petitioner] also stated that the victim had told him that she intended to stay with a female friend for a few days.

         " On March 21, 2007, investigators from the East Hartford police department went to the [petitioner's] house and asked to speak with the [petitioner] . . . . Prior to leaving for the police station, unprompted by the investigators, the [petitioner] stated to Donald Olson, an investigator: 'It's sad . . . about Mya,' but did not elaborate further on that statement. During the subsequent interview at the police station, the [petitioner] gave the investigators an account of his personal relationship with the victim and his interactions with her on the night of March 14, 2007, which was memorialized in a sworn statement that eventually was read to the jury at trial. In that statement, the [petitioner] again indicated that he had picked up the victim in the afternoon of March 14, 2007, and had dropped her off at the Kahoots in East Hartford at her request, but denied any knowledge of what had happened to her after that time.

         " On March 21, 2007, the police also discovered that the [petitioner] owned a seventy-five acre parcel of [161 Conn.App. 214] undeveloped land in Stafford (Stafford ...


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