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Santos v. Commissioner of Correction

Court of Appeals of Connecticut

October 3, 2017

RICHARD SANTOS
v.
COMMISSIONER OF CORRECTION

          Argued May 23, 2017

          Vishal K. Garg, for the appellant (petitioner).

          Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Rebecca A. Barry, assistant state's attorney, for the appellee (respondent).

          Lavine, Sheldon and Harper, Js.

         Syllabus

         The petitioner, who had been convicted of various crimes in connection with his alleged conduct in stabbing the victim with the assistance of an accomplice, E, sought a writ of habeas corpus, claiming that the prosecutor violated his constitutional right to due process by knowingly presenting and failing to correct false testimony given by E, and that his trial counsel provided ineffective assistance by failing to adequately advise the petitioner about the risks of testifying on his own behalf. During the petitioner's criminal trial, E, who was incarcerated at the time for his role in the stabbing of the victim, testified that he had observed the petitioner stab the victim with a knife, that the prosecutor did not offer or promise him anything in exchange for his testimony, that he was testifying of his own free will, and that his sentence would not be reduced and that he did not expect to obtain a sentence modification in exchange for his testimony against the petitioner. E admitted on cross-examination, however, that he was testifying against the petitioner because he anticipated that his sentence may be reduced in exchange for his truthful testimony. The habeas court rendered judgment denying the petition and, thereafter, denied the petition for certification to appeal, and the petitioner appealed to this court.

Held:

         1. The habeas court did not abuse its discretion in denying the petition for certification to appeal with respect to the petitioner's claim that the prosecutor knowingly presented E's false or misleading testimony and thereby violated his right to due process; even if the prosecutor, upon reviewing E's psychiatric records, should have known that E's testimony regarding his expectation of receiving a reduction of his sentence was misleading, any error was harmless beyond a reasonable doubt, because, even if the jury disregarded E's testimony, there was sufficient other evidence presented by the state, including testimony from the petitioner, the victim, and several other witnesses, and letters that the petitioner wrote from prison, to support the petitioner's conviction.

         2. The habeas court did not abuse its discretion in denying the petition for certification to appeal as to the petitioner's claim that his trial counsel was deficient because she failed to adequately advise the petitioner about the risks of testifying on his own behalf; that court was not clearly erroneous in finding that trial counsel's performance in advising the petitioner about testifying on his own behalf was not deficient, as the habeas court credited the testimony of trial counsel and her co-counsel that they had advised the petitioner about the downsides and advantages of testifying, it discredited the petitioner's testimony that his attorneys spent a short and inadequate amount of time preparing him to testify, and it specifically found that it was the petitioner's decision to testify and that any prejudice he may have suffered was due solely to his own distrust of his trial counsel, and the court's factual findings were supported by the record.

         Procedural History

         Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the amended petition was withdrawn in part and the matter was tried to the court, Fuger, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court.

Appeal dismissed.

          OPINION

          LAVINE, J.

         The petitioner, Richard Santos, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal because it improperly concluded that (1) the prosecutor in his criminal trial did not knowingly present false or misleading testimony against him, [1] and (2) his trial defense counsel did not render ineffective assistance of counsel.[2] We dismiss the appeal.

         The following facts, as found by the habeas court, and procedural history are relevant to our resolution of the petitioner's appeal. ‘‘In the early morning hours of February 3, 2007, a stabbing occurred at 79 Foster Street, a red brick crack house in Meriden [house]. The house was being rented to E.P., [3] the so-called landlord of the premises, who had resided there for seven years. The [petitioner] had been staying in a room on the second floor for about six weeks. . . .

         ‘‘Kewon Potts [victim] had been hanging out at [the house] on the afternoon of February 2, 2007, and had had an argument with the [petitioner] over what the [petitioner] perceived to be a low offer by [the victim] to buy a large crack rock. The [petitioner] apparently also had taken issue with [the victim's] poor treatment of [the victim's] girlfriend, who spent time at [the house]. . . .

         ‘‘At about 1 a.m., [on February 3, 2007, the victim] was walking home from a friend's house on the corner of Foster and Lincoln Streets when he passed [the house]. E.P. and the [petitioner], who were on the porch, called out to [the victim] to come inside. [The victim] was led into the house; E.P. immediately barricaded the door. The [petitioner] pulled a folding knife that he frequently carried and began attacking [the victim], ultimately stabbing him in the head, left arm and chest. The struggle moved from the living room into the kitchen. Once there, E.P. blocked the back door, wielding a large rock as a weapon. The two men then attempted to force [the victim] into the basement. . . .

         ‘‘The other persons present at [the house] became aware of the violent altercation and panicked; many fled the scene. . . .

         ‘‘The [petitioner] and E.P. left quickly thereafter. E.P. went to his mother's home in New Haven. The [petitioner] went to Alberta Borelli's house, where his [friend], Mala Meekins, was staying. While there, the [petitioner] made several telephone calls in which he stated that he had stabbed someone. . . . The [petitioner] later traveled to Michigan, where he discarded the knife.

         ‘‘The [petitioner] was arrested and charged, by way of substitute information, with three counts: assault in the first degree [in violation of General Statutes § 53a-59 (a) (1)], unlawful restraint in the first degree [in violation of General Statutes § 53a-95], and possession of a dangerous instrument [in violation of General Statutes § 53-206]. . . .

         ‘‘A few weeks prior to trial, Donald Light, a private investigator hired by the [petitioner], interviewed E.P. Light noted that E.P. was held at Garner Correctional Institution (Garner), which he believed housed individuals with mental health issues. Light observed that E.P. moved slowly, his speech was slow and labored, and he seemed catatonic. On the basis of Light's interview with E.P., the [petitioner] filed a motion for an in camera review of E.P.'s psychiatric records. The [trial] court granted the motion and reviewed the records.'' (Citation omitted; footnote added; internal quotation marks omitted.)

         ‘‘[On December 3, 2008, the state began its case-in-chief against the petitioner]. During trial, E.P. was called to testify by the state. He testified that, [on April 18, 2008], he had pleaded guilty to assault in the first degree as an accessory for his role in the stabbing of the victim and was incarcerated at Garner. . . .

         ‘‘E.P. further testified that on the day of the incident, he had seen the [petitioner] with what looked like a miniature hunting knife that folded up. He stated that he had seen the [petitioner] with the knife on previous occasions and that when the [petitioner] got high, he would walk around with it in his hand. E.P. stated that when the victim arrived back at the house, he opened the door for the victim and they walked toward the kitchen. There, a fight broke out between the [petitioner] and the victim, and E.P. testified that he saw the [petitioner] grab the victim and start ...


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