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Bova v. Comm'r of Corr.

Appellate Court of Connecticut

January 12, 2016

MARK BOVA
v.
COMMISSIONER OF CORRECTION

         Argued 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Tolland, where the court, Kwak, J., granted the respondent's motion for summary judgment; thereafter, the petition was withdrawn in part; subsequently, the matter was tried to the court; judgment denying the petition, from which the petitioner, on the granting of certification, appealed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.

          Affirmed.

          SYLLABUS

         The 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.

         Held :

         1. The 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.

         2. The 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.

         3. The 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.

         Peter Tsimbidaros, for the appellant (petitioner).

         Melissa 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 appellee (respondent).

         Lavine, Mullins and Schaller, Js.

          OPINION

Page 269

         [162 Conn.App. 350] SCHALLER, J.

         The 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.

         The 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,

Page 270

690 A.2d 1370 (1997), our Supreme Court concluded that the jury reasonably could have found the following facts.

         On 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.

         Donofrio 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.

         As 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.[1] Id., 213. On March 9, 1999, the petitioner filed his first habeas petition, citing grounds different from those in the present appeal,[2] and was represented by a different attorney (first habeas counsel) from Williams or from his present attorney.[3] The habeas court dismissed the petition, and this court affirmed the judgment

Page 271

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).

         The 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, ...


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