Heck v. Commissioner of Correction

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DAVID HECK v. COMMISSIONER
OF CORRECTION
(AC 38246)
DiPentima, C. J., and Keller and Bear, Js.
Submitted on briefs November 17, 2016—officially released February 7, 2017
(Appeal from Superior Court, judicial district of
Tolland, Sferrazza, J.)
Walter C. Bansley IV filed a brief for the appellant
(petitioner).
Gail P. Hardy, state’s attorney, Sarah Hanna, assis-
tant state’s attorney, and Lisa Maria Proscino, former
special deputy assistant state’s attorney, filed a brief
for the appellee (respondent).
Opinion
PER CURIAM. The petitioner, David Heck, appeals
from the judgment of the habeas court denying his
amended petition for a writ of habeas corpus. On
appeal, the petitioner claims that the habeas court
improperly concluded that counsel who represented
him in two criminal trials involving town hall burglaries
provided ineffective assistance. We affirm the judgment
of the habeas court.
On June 25, 2009, in connection with a burglary of
the Suffield town hall, in Docket No. CR-08-0148136-
S (Enfield case), a jury found the petitioner guilty of
burglary in the third degree in violation of General Stat-
utes § 53a-103 (a), criminal mischief in the first degree
in violation of General Statutes § 53a-115 (a) (5), and
larceny in the second degree in violation of General
Statutes § 53a-123 (a) (2). The court, Dubay, J., sen-
tenced the petitioner to a total effective term of ten
years incarceration, suspended after nine years, with
five years of probation.
On November 18, 2010, in connection with a burglary
of the Ashford town hall, in Docket No. CR-08-0136011-
S (Danielson case), a jury found the petitioner guilty
of burglary in the third degree in violation of § 53a-103
(a), criminal mischief in the first degree in violation of
§ 53a-115 (a) (5), and attempt to commit larceny in the
sixth degree in violation of General Statutes §§ 53a-
49 and 53a-125b. The court, Swords, J., sentenced the
petitioner to a total effective term of seven years and
three months incarceration, followed by three years
of special parole, consecutive to his sentence in the
Enfield case.
On direct appeal, this court affirmed the petitioner’s
conviction in the Enfield case. State v. Heck, 128 Conn.
App. 633, 635, 18 A.3d 673, cert. denied, 301 Conn. 935,
23 A.3d 728 (2011). The petitioner did not appeal from
the judgment of conviction in the Danielson case.
On December 16, 2014, the petitioner filed an
amended petition for a writ of habeas corpus. Relevant
to the present appeal, in count one, the petitioner
alleged ineffective assistance of trial counsel, Jean-Paul
Garcia Lewis, in connection with his convictions in both
the Enfield and Danielson cases. He alleged that trial
counsel had been ineffective in failing to move to sup-
press certain evidence, namely, a global positioning
system (GPS) device, that had been seized from a vehi-
cle that the defendant was using at the time that he
was arrested by police in Hillsborough, New Hampshire,
for having burglarized the town hall in that municipality,
and in failing to alert the trial court that a New Hamp-
shire court had ordered that the GPS device be returned
to him.1 The GPS device was transferred to the state’s
attorneys in Enfield and Danielson, and the state uti-
lized it in the presence of the jury during both of the
petitioner’s criminal trials. Because the GPS device
reflected that the Hillsborough, Suffield, and Ashford
town halls were among several addresses that recently
had been accessed on it, the state used information
stored on the GPS device as evidence that the petitioner
was implicated in the burglaries of the Suffield and
Ashford town halls.2 In characterizing the nature of the
defendant’s claim, the habeas court aptly stated that,
although trial counsel unsuccessfully had moved to sup-
press the GPS device on the ground that it had been
illegally seized, the petitioner claimed that counsel ‘‘was
professionally deficient for failing to include as an alter-
native ground for exclusion the purportedly illegal
transfer of the GPS device to Connecticut despite the
assumed lawfulness of the seizure of the [GPS device]
by New Hampshire police.’’ More precisely, the peti-
tioner criticized the performance of trial counsel in
failing to argue that the physical transfer of the GPS
device to Connecticut and its subsequent use at his two
trials were constitutionally impermissible because once
the petitioner’s burglary case in New Hampshire was
annulled under New Hampshire law sometime after
November 12, 2008, any police and court records con-
tained in his case were not disclosable to the public,
including Connecticut law enforcement officials. The
petitioner argued that he was prejudiced by the use of
the GPS device at both trials.3 Following a trial held on
March 17, 2015, the habeas court, Sferrazza, J., denied
the petition for a writ of habeas corpus. Judge Sferrazza
subsequently granted the petition for certification to
appeal.
In setting forth its findings of fact, the habeas court
adopted the summary of facts underlying the Enfield
case that were set forth by this court in State v. Heck,
supra, 128 Conn. App. 635–37. In relevant part, those
facts are as follows: ‘‘During the overnight hours of
August 29, 2007, a burglary was committed at the town
hall in Suffield. . . . The burglar entered the building,
which did not have an alarm system, through a base-
ment storm window that had been pried off its track
and dislodged. Once inside, the perpetrator broke open
the door to the tax office, pried open the cash register
and safe, and left with both cash and checks. During
the burglary, the perpetrator rifled through various cabi-
nets, desks and papers in the office, causing consider-
able property damage . . . .
‘‘On September 7, 2007, Christopher Burns, a detec-
tive with the Connecticut state police, received a tele-
phone call from police officers in Hillsborough, New
Hampshire, stating that they had apprehended the [peti-
tioner] for the burglary of two town halls in New Hamp-
shire. At around 4 a.m. that morning, police in
Hillsborough had received a telephone call concerning
the [petitioner’s] rented pickup truck, which was
parked in a driveway . . . in Hillsborough. David Roar-
ick, a captain with the Hillsborough Police Department
arrived at the scene two minutes later to investigate.
As he approached, he saw a 2007 Dodge pickup truck
with a Massachusetts license plate in the driveway with
a person sitting in the passenger seat. He saw someone
run from across the street toward the property where
the truck was parked and then walk behind the house
into a wooded area. Roarick called police dispatch, who
reported that the truck was registered to Carmac, Inc.
He then approached the vehicle and spoke to the pas-
senger, Justin Douglas, who informed Roarick that the
driver was visiting a friend nearby but that Douglas did
not know the driver’s name or where he had gone.
Because Douglas’ answers were evasive and Roarick
believed that the truck may have been stolen, he asked
Douglas to exit the vehicle.
‘‘After Douglas exited the vehicle, Roarick noticed a
GPS device on the dashboard of the truck. In an attempt
to determine the location of the missing driver, Roarick
pressed the recent entry button on the [GPS] device to
scroll through the recently entered addresses. Among
the first addresses displayed were those of the Hills-
borough and Windsor, New Hampshire town halls,
which had been burglarized. He also found a driver’s
license and business card in the center console with
the [petitioner’s] name on it, although he did not know
if they belonged to the driver of the vehicle. . . .
Michael Martin, a Henniker, New Hampshire police offi-
cer, arrived on the scene and walked over to the Hills-
borough town hall to investigate and determined that
it had been burglarized. Eventually, Douglas provided
to Roarick the number for the [petitioner’s] cellular
telephone. The [petitioner] failed to answer when Roar-
ick called him from his own telephone, however, when
Roarick called him using Douglas’ telephone, the [peti-
tioner] answered. Roarick informed the [petitioner] that
he knew about the burglary at the Hillsborough town
hall and that he should turn himself in to the police.
The [petitioner] subsequently turned himself in and was
placed under arrest. He admitted that he had burgla-
rized the town halls in Hillsborough and Windsor4
because he had lost his house and was having financial
difficulties.’’5 (Footnotes altered; internal quotation
marks omitted.)
The habeas court went on to find that, after Burns
received the call from police officers in Hillsborough
on September 7, 2007, he drove that day to New Hamp-
shire. At that time, he ‘‘personally reviewed each of the
many destinations entered into the [GPS] device, and
he recorded the same in a written document at that
time. . . . [T]he Suffield and Ashford town hall loca-
tions were among the destinations entered into the sys-
tem previously.’’
The habeas court indicated in its memorandum of
decision that ‘‘in order to clarify the petitioner’s claim
of ineffective assistance, the following chronology is
important. . . . [T]he New Hampshire police seized
the [GPS device] on September 7, 2007, and the peti-
tioner was arrested for a New Hampshire burglary
shortly thereafter. Before his indictment in New Hamp-
shire, the petitioner’s defense counsel in that case,
Attorney Robin Melone, filed a blanket motion for the
return to the petitioner of all tangible items seized by the
New Hampshire police. That motion never specifically
referenced the [GPS device].
‘‘On November 19, 2007, a New Hampshire court
ordered the return of several other seized articles,
which the petitioner retrieved, but not the [GPS device].
On June 19, 2008, Judge [Kathleen A. McGuire] granted
a motion to exclude certain evidence against the peti-
tioner but denied suppression of the [GPS device]. The
New Hampshire prosecutor nolled the charges against
the petitioner on June 19, 2008.6
‘‘Because of the similarity of the alleged burglary in
New Hampshire to certain burglaries in Connecticut
and because of information garnered from the GPS
device as to the travels of the petitioner’s rented truck,
on September 5, 2008, the state’s attorney’s offices for
G.A. 13 and G.A. 11 requested that New Hampshire
authorities temporarily transfer the [GPS device] to
Connecticut law enforcement for possible prosecution
of criminal charges for offenses committed in this state.
On September 11, 2008, an assistant county attorney in
New Hampshire moved for the New Hampshire court
to approve the transfer. Attorney Melone opposed that
request and, on November 12, 2008, moved to compel
the return of the [GPS] device to the petitioner.
‘‘No evidence was adduced at the habeas hearing
regarding any rulings by the New Hampshire court on
these motions. However, the New Hampshire authori-
ties did, in fact, transfer possession of the [GPS device]
to the Connecticut prosecutors for use at the petition-
er’s criminal trials in this state.’’ (Footnote added.)
As stated previously, prior to the commencement
of both trials, trial counsel unsuccessfully moved to
suppress use of the GPS device on the basis of the
allegedly illegal seizure of that item by the New Hamp-
shire police. The petitioner alleges in the present habeas
petition that trial counsel was deficient in failing to
include as an alternative ground for exclusion the pur-
portedly illegal transfer of the GPS device to Connecti-
cut, despite the assumed lawfulness of its seizure by
the New Hampshire police. The petitioner argues that
the physical transfer of the GPS device to Connecticut
and its subsequent use at his two trials were constitu-
tionally impermissible because once the petitioner’s
burglary case in New Hampshire was annulled under
New Hampshire law sometime after November 12, 2008,
any police and court records contained in his case were
not disclosable to the public, including to Connecticut
law enforcement officials.
Our standard of review is well established. ‘‘[T]he
right to counsel is the right to the effective assistance
of counsel. . . . There are two components of a claim
of ineffective assistance of counsel. First, the [peti-
tioner] must show that counsel’s performance was defi-
cient. . . . Second, the [petitioner] must show that the
deficient performance prejudiced the defense.’’ (Cita-
tion omitted; internal quotation marks omitted.) John-
son v. Commissioner of Correction, 218 Conn. 403, 424,
589 A.2d 1214 (1991). ‘‘A failure to establish either prong
will be fatal to a claim of ineffectiveness of counsel.’’
Alterisi v. Commissioner of Correction, 145 Conn. App.
218, 223, 77 A.3d 748, cert. denied, 310 Conn. 933, 78
A.3d 859 (2013). ‘‘Judicial scrutiny of counsel’s perfor-
mance must be highly deferential. . . . A fair assess-
ment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s chal-
lenged conduct . . . . [A] court must indulge a strong
presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance
. . . .’’ (Internal quotation marks omitted.) Johnson v.
Commissioner of Correction, 285 Conn. 556, 577, 941
A.2d 248 (2008).
‘‘The underlying historical facts found by the habeas
court may not be disturbed unless the findings were
clearly erroneous. . . . Historical facts constitute a
recital of external events and the credibility of their
narrators. So-called mixed questions of fact and law,
which require the application of a legal standard to
the historical-fact determinations, are not facts in this
sense. . . . Whether the representation a [petitioner]
received at trial was constitutionally inadequate is a
mixed question of law and fact. . . . As such, that ques-
tion requires plenary review by this court unfettered
by the clearly erroneous standard.’’ (Internal quotation
marks omitted.) Crawford v. Commissioner of Correc-
tion, 285 Conn. 585, 597–98, 940 A.2d 789 (2008).
After thoroughly examining the record on appeal and
the briefs and arguments of the parties, we agree with
the habeas court that the petitioner’s claim fails for
several reasons. The petitioner was not prejudiced by
trial counsel’s failure to move to suppress on the basis
of the transfer of the GPS device. This is because it
was Burns’ review of the contents of the GPS device’s
record of past destinations, rather than any physical
attributes of the GPS device itself, that linked the peti-
tioner to the burglaries of the Suffield and Ashford town
halls. The incriminatory evidence related to the GPS
device was admitted in the form of Burns’ testimony.
Burns testified at both criminal trials that in response
to notification by law enforcement officials in New
Hampshire of the GPS device entries involving Connect-
icut municipal building addresses, he traveled to Hills-
borough, New Hampshire, on September 7, 2007, the
same day the petitioner was arrested. When Burns
arrived in Hillsborough, he personally reviewed each
of the many destinations entered into the GPS device
and recorded the same in a written document at that
time.7 He testified that he recalled that the Suffield and
Ashford town hall locations were among the destina-
tions entered into the GPS device previously. This infor-
mation was obtained before the petitioner requested
the return of the GPS device and months before his
New Hampshire arrest records were sealed by the New
Hampshire court.
Moreover, the seizure of the GPS device and search
of its entries was held to be constitutionally valid by
both the New Hampshire and Connecticut criminal
courts, and consequently, the motions to suppress such
information were denied. Therefore, Burns’ testimony
as to his observations and recording of that information
on September 7, 2007, was admissible against the peti-
tioner in Connecticut despite the eventual sealing of
his New Hampshire file at a later date, as his testimony
was based on personal knowledge and not based on
his review of erased records.
‘‘[W]e have recognized the legitimacy of the distinc-
tion between testimony based on independent personal
knowledge and testimony based on inadmissible
records, permitting the former while barring the latter.’’
State v. Morowitz, 200 Conn. 440, 450, 512 A.2d 175
(1986). An erasure ‘‘statute does not and cannot insulate
[an individual] from the consequences of his prior
actions.’’ (Emphasis in original.) Id., 451; see also Rado
v. Board of Education, 216 Conn. 541, 550, 583 A.2d 102
(1990) (erasure act not intended to obliterate memory).
The petitioner has not demonstrated that Connecticut
law enforcement and prosecutors would have been con-
strained by any New Hampshire court order or New
Hampshire’s annulment statute when investigating and
pursuing a criminal case in Connecticut. Having
acquired the inculpatory information from the GPS
device lawfully under Connecticut law, Burns’ testi-
mony and his display of the device to the jurors was
clearly proper. Even assuming some violation of the
law by New Hampshire authorities, where the seizure
and search of evidence satisfied the laws of the forum
jurisdiction, Connecticut, it is not subject to exclusion
based on a violation of the law by the procurement
jurisdiction, New Hampshire. See State v. Boyd, 295
Conn. 707, 727–28, 992 A.2d 1071 (2010), cert. denied,
562 U.S. 1224, 131 S. Ct. 1474, 179 L. Ed. 2d 314 (2011).
The petitioner’s claim is based on trial counsel’s fail-
ure to move to exclude evidence obtained from the GPS
device on the ground that New Hampshire authorities
may have breached New Hampshire’s annulment stat-
ute in relinquishing the GPS device to Connecticut law
enforcement officials. The habeas court correctly con-
cluded that this was not a legally viable ground. For
purposes of the petitioner’s fourth amendment claim,
the material issue is whether the police and prosecutors
in Connecticut violated applicable Connecticut law. See
id. Because the petitioner has not set forth a legally
viable ground on which to support a motion to suppress
regarding the transfer of the GPS device, he has failed
to demonstrate that trial counsel acted unreasonably
in failing to file such a motion.
As the petitioner failed to demonstrate that a motion
to suppress contesting the transfer of the GPS device
would have been successful, the habeas court deter-
mined that he failed to demonstrate prejudice related
to the failure to move to suppress on this ground. With-
out such a showing, there was no reasonable probability
that the result of his trial would have been different.
In addition, proof of prejudice is lacking because the
petitioner acknowledges that even if the GPS device
would have been suppressed, none of Burns’ damaging
testimony would have been excluded concerning what
his search of the petitioner’s GPS device and documen-
tation in New Hampshire revealed—namely, recent
address entries that matched the locations of the town
hall burglaries in Suffield and Ashford, as well as
addresses for burglary locations in New Hampshire,
two similar burglaries that the petitioner had admit-
ted committing.
Accordingly, because the petitioner has not demon-
strated that he had a viable fourth amendment claim,
the habeas court, in denying the petition, properly deter-
mined that the petitioner failed to meet his burden of
proving that his trial counsel was ineffective in failing
to raise such a claim challenging the transfer of the
GPS device from New Hampshire to Connecticut.
The judgment is affirmed.
1
The petitioner alleged in count two of his amended petition that his right
to be free from unreasonable searches and seizures as afforded by the
federal and state constitutions was violated when Connecticut state officials
‘‘seized [his GPS device] from him in New Hampshire, without a warrant
and in an unreasonable manner’’ and then ‘‘unreasonably seized and then
improperly used [the GPS device] against him at his trial.’’ In count three, the
petitioner alleged that his due process rights were violated when Connecticut
state officials ‘‘searched and seized [his GPS device] without a hearing or
warrant’’ and ‘‘utilized [the GPS device] against him at trial, without property
hearing or due process.’’ Prior to trial, the habeas court dismissed the due
process claims in the third count on the ground of procedural default, and,
following trial, the habeas court denied the fourth amendment claim in the
second count on the same ground. In the present appeal, the petitioner does
not challenge these rulings.
2
There was evidence that, pursuant to an agreement between the Hills-
borough Police Department and the Suffield Police Department dated June
4, 2009, Detective Mark Sargent of the Suffield Police Department retrieved
the GPS device before it was marked as an exhibit for identification in the
Enfield case on June 25, 2009.
3
The record reflects that the GPS device was not introduced as a full
exhibit in either the Enfield or Danielson trials. During his direct examination
by the state in both cases, however, Detective Christopher Burns of the
Connecticut State Police utilized the GPS device in the presence of the jury
to demonstrate the presence of the damning entries on it. This evidence
was cumulative of Burns’ personal recollection and written notes of his
observations on September 7, 2007, in Hillsborough. The circumstantial
evidence that the GPS device contained the petitioner’s requests for direc-
tions to the Suffield and Ashford town halls at or about particular times
and dates tended to prove his guilt at both trials.
4
There was evidence that the burglary of the Windsor town hall was
discovered by New Hampshire State Trooper Thomas Forsley after he
learned that the address of the Windsor town hall was an entry on the GPS
discovered in the truck.
5
Similar evidence of the two New Hampshire burglaries was admitted in
the Enfield and Danielson cases as uncharged misconduct. In the Enfield
case, it was used to demonstrate the petitioner’s intent, the identity of the
person who committed the crime, a motive for the crime, a common plan or
scheme, a system of criminal activity, and to corroborate crucial prosecution
testimony. In the Danielson case, it was used to demonstrate the petitioner’s
intent, motive, common plan or scheme, and to corroborate crucial prosecu-
tion testimony.
6
The habeas court noted that the petitioner secured an annulment of his
arrest records following the nolle entered by the New Hampshire prosecutor
sometime after November 12, 2008, and that an ‘‘annulment’’ under New
Hampshire law is akin to Connecticut’s statutory erasure procedure, embod-
ied in General Statutes § 54-142a, in that an annulment imposes a duty of
nondisclosure to the public of police and court records.
7
At the request of the petitioner, Burns’ documentation of the locations
recorded on the GPS device was admitted as a full exhibit in the Dan-
ielson case.