October 8, 2015
Amended petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where the
court, Kwak, J., granted the respondent's motion for
summary judgment; thereafter, the petition was withdrawn in
part; subsequently, the matter was tried to the court;
judgment denying the petition, from which the petitioner, on
the granting of certification, appealed to this court.
petitioner, who had been convicted of murder and conspiracy
to commit murder in connection with the death of his wife, S,
filed a second petition for a writ of habeas corpus, claiming
that the counsel who had represented him with respect to his
first habeas petition provided ineffective assistance in
failing to pursue certain claims pertaining to W, the counsel
who represented him at his criminal trial and on direct
appeal. The petitioner's conviction stemmed from his
conduct in strangling S and smothering her with the
assistance of D, a woman with whom he was having an
extramarital affair at the time. In his second habeas
petition, the petitioner claimed, inter alia, that his first
habeas counsel was ineffective in failing to pursue claims
concerning W's failure to request a new trial based on
the trial court's inconsistent application of the dual
intent requirement of the law of conspiracy, which was based
on his claim that the trial court initially had concluded
that there was no evidence of a conspiracy between the
petitioner and D, that subsequent media coverage of the trial
motivated the trial court to change course the following day
and deny his motion for a judgment of acquittal, and that the
court again found, when subsequently sentencing D in a
separate proceeding, that there was no evidence of a
conspiracy. The habeas court rendered judgment denying the
petition, from which the petitioner, on the granting of
certification, appealed to this court.
petitioner failed to prove that he was prejudiced by the fact
that his first habeas counsel did not assert a claim
concerning W's failure to raise the issue of any
discrepancy among the trial court's statements regarding
the existence of a conspiracy; the record demonstrated that
the trial court commented on the evidence in a thorough and
thoughtful manner prior to ruling on the petitioner's
motion for a judgment of acquittal and that it did not make
inconsistent rulings, as the evidence and argument presented
on the motion, rather than media speculation, provided the
basis for the trial court's decision to deny the motion
for a judgment of acquittal, the trial court's leniency
in sentencing D was supported by numerous factors, the court
specifically stated that a conspiracy case against D, who had
entered a guilty plea, would not have been impossible for the
state to win, and that was not rebutted by anything presented
at the second habeas trial.
petitioner could not prevail on his claim that his first
habeas counsel was ineffective in failing to pursue a claim
concerning W's failure to investigate and to produce an
adequate basis to impeach D, including a theory that D had
been stalking the petitioner and his fiancée, L, prior
to and during the trial, which he claimed would have
demonstrated D's bias and motive for implicating the
petitioner in the death of S; the second habeas court
properly found that the petitioner had failed to demonstrate
that he was prejudiced by W's failure to pursue the
stalking theory, as it was not clear what evidence of
stalking behavior the petitioner could have elicited due to
his failure to call L, D, W or his first habeas counsel as
witnesses at the second habeas trial, the record showed that
W had elicited numerous examples of D's inconsistent
statements and of her animosity toward S and the petitioner,
and there was significant support for the second habeas
court's determination that the petitioner failed to prove
there was a reasonable probability that had first habeas
counsel raised W's failure to pursue the stalking theory,
the result of the proceeding would have been different.
petitioner failed to meet his burden of showing that he was
prejudiced by his first habeas counsel's failure to raise
the issue of W's failure to object to certain alleged
instances of prosecutorial impropriety during closing
argument at the time the prosecutor finished argument; W
raised an objection at trial after the luncheon recess, the
trial court did not rule that the objection was too late, nor
did it discount the merits of the objection due to W's
failure to object immediately, but instead the court ruled
that it would not comment on or strike the language that was
the subject of the objection and did not further elucidate
its reasoning, that decision was upheld on direct appeal
without any mention of W's failure to object immediately,
and there was no evidence in the trial transcript or the
second habeas trial transcript suggesting that the court
would have ruled differently had W objected immediately.
Tsimbidaros, for the appellant (petitioner).
L. Streeto, senior assistant state's attorney, with whom,
on the brief, were Kevin D. Lawlor, state's attorney,
Michael Proto, assistant state's attorney, and Steven M.
Lesko, deputy assistant state's attorney, for the
Mullins and Schaller, Js.
Conn.App. 350] SCHALLER, J.
petitioner, Mark Bova, appeals after the second habeas court
granted his petition for certification to appeal from the
court's judgment denying his second amended petition for
a writ of habeas corpus. On appeal, he claims that the second
habeas court improperly concluded that he had not been denied
effective assistance of counsel when his first habeas counsel
failed to adequately pursue claims pertaining to the failure
of this trial and appellate counsel, John R. Williams, (1) to
request a new trial based on or to raise on appeal the trial
court's inconsistent application of the dual intent
requirement in the law of conspiracy; (2) to investigate and
then produce an adequate basis to impeach a witness regarding
her bias and motive; and (3) to object adequately to
instances of prosecutorial impropriety during closing
argument. We affirm the judgment of the second habeas court.
petitioner was convicted after a jury trial of murder in
violation of General Statutes § 53a-54a (a) and
conspiracy to commit murder in violation of General Statutes
§ § 53a-54a (a) and 53a-48 (a). The trial court,
Gormley, J., sentenced him to concurrent prison
terms of sixty years on the murder count and twenty years on
the conspiracy count. On direct appeal in State v.
[162 Conn.App. 351] Bova, 240 Conn. 210, 213-15,
690 A.2d 1370 (1997), our Supreme Court concluded that the
jury reasonably could have found the following facts.
January 29, 1992, the petitioner reported his wife, Susan
Bova, missing. Id., 213-14. The West Haven Police
Department discovered her body shortly thereafter and
commenced an investigation of her death. Id., 214.
In the course of the investigation, the petitioner revealed
that he had been engaged in an extramarital affair with Diane
Donofrio since 1985. Id., 215. In May, 1993, the
petitioner terminated his relationship with Donofrio.
Id., 216. Two months later, Donofrio reported that
the petitioner had killed the victim on January 28, 1992.
Id., 216. The petitioner was arrested and charged
with murder and conspiracy to commit murder.
testified at the petitioner's criminal trial that the
petitioner told her he intended to kill the victim, then
called her on Tuesday, January 28, 1992, while he was in the
process of doing so, asking for her assistance. Id.,
216. Donofrio went to the petitioner's house.
Id. She found him strangling the victim with a cord.
Id. Because the victim still had a pulse, Donofrio
and the petitioner took turns smothering her with a pillow
until they could no longer detect any heartbeat. Id.
previously stated, the petitioner was convicted of murder and
conspiracy to commit murder. Donofrio pleaded guilty to
conspiracy to commit murder and making a false statement to
the police; she was sentenced, by the same trial judge,
Gormley, J., as the petitioner, to ten years
imprisonment, execution suspended after four years, and three
years of probation for the conspiracy charge, and received an
unconditional discharge on the false statement charge. On
direct appeal our Supreme Court affirmed the judgment of [162
Conn.App. 352] the trial court. Id., 213. On
March 9, 1999, the petitioner filed his first habeas
petition, citing grounds different from those in the present
appeal, and was represented by a different
attorney (first habeas counsel) from Williams or from his
present attorney. The habeas court dismissed the
petition, and this court affirmed the judgment
of dismissal. Bova v. Commissioner of Correction, 95
Conn.App. 129, 130-31, 894 A.2d 1067, cert. denied, 278 Conn.
920, 901 A.2d 43 (2006).
petitioner filed a second habeas petition, which he amended
on April 9, 2013. Following a trial (second habeas trial) at
which the petitioner testified and submitted documentary
evidence, the habeas court, Kwak, J. (second habeas
court), first granted the motion for summary judgment filed
by the respondent, the Commissioner of Correction, on three
of the four counts, then denied the petition regarding the
remaining count [162 Conn.App. 353] by written memorandum of
decision on March 14, ...