67 Conn. App. 674 | Conn. App. Ct. | 2002
Opinion
The petitioner, Richard A. Lapointe, appeals from the dismissal of his petition for a writ of habeas corpus. He claims that the habeas court improperly (1) denied his multiple motions to open the evidentiary portion of the habeas hearing, (2) failed to grant him a new trial because of ineffective assistance of habeas counsel and (3) failed to rule on his posttrial motion for disclosure. We affirm the judgment of the habeas court.
Following a jury trial, the petitioner was found guilty of capital felony, arson murder, felony murder, murder, arson in the first degree, assault in the first degree, sexual assault in the first degree, sexual assault in the third degree and kidnapping in the first degree. After hearing evidence in the penalty phase of the proceedings on the capital felony conviction, the jury determined that the state had proved an aggravating factor
Following the defendant’s direct appeal, a group known as “Friends of Richard Lapointe” (Friends) raised funds to retain an attorney to attack collaterally what the Friends perceived was a wrongful conviction. The group retained Henry Theodore Vogt, a member of the Connecticut bar, for this purpose. Vogt filed a petition for a writ of habeas corpus, which, after a series of amendments, came to trial on February 23, 2000, and continued on various dates until its conclusion on April 6, 2000.
As the habeas hearing progressed, the Friends became dissatisfied with the manner in which Vogt was handling the trial and attempted to terminate his representation of the petitioner. In the middle of the ongoing habeas trial, a New Jersey attorney, Paul Casteleiro,
The remainder of the habeas hearing proceeded without incident and concluded on April 6, 2000. On or about April 20, 2000, W. James Cousins, a Connecticut attorney, attempted to file an appearance on behalf of the petitioner. Vogt objected to Cousins’ appearance pursuant to Practice Book § 3-8.
The petitioner does not contend that the habeas court improperly dismissed the habeas petition on the basis of the evidence before the court. Rather, he contends that (1) habeas counsel should have presented additional evidence that would have warranted a favorable habeas ruling and (2) the habeas court should have allowed the petitioner the opportunity to offer such additional evidence after the close of the hearing.
I
The petitioner, through his new counsel, first argues that the court improperly refused his multiple motions to open the evidentiary portion of the trial. He sought to present evidence of actual innocence, prosecutorial misconduct and ineffective assistance of criminal trial counsel. A case may be opened to fill an evidentiary gap resulting from inadvertence, mistake or some compelling circumstance. Bortner v. Woodbridge, 250 Conn. 241, 265-67, 736 A.2d 104 (1999). Examination of the petitioner’s motions, the accompanying memorandum of law and his appellate brief make it clear that in this case, he was not seeking to merely fill in an inadvertent evidentiary omission, but rather to retry most of the case and to initiate entirely new theories of defense.
We conclude that the habeas court did not abuse its discretion in declining to open the evidentiary portion of the trial.
II
The petitioner next claims that he is entitled to a new trial because of the ineffective assistance of his habeas counsel. The law presumes that counsel is competent until evidence has been introduced to the contrary. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). It is elementary jurisprudence that the determination of whether counsel’s conduct was ineffective is a peculiarly fact bound inquiry. Phillips v. Warden, 220 Conn. 112, 134, 595 A.2d 1356 (1991). No citation is needed for the fundamental principle that as an appellate tribunal, this court cannot find facts. Only a trial court could find that Vogt’s performance was constitutionally defective, and it could do so only after a claim of ineffective assistance of counsel
The petitioner is not without remedy. There is no bar to his filing a petition for a second writ of habeas corpus challenging the effectiveness of his first habeas counsel. Lozada v. Warden, 223 Conn. 834, 845, 613 A.2d 818 (1992). We conclude, therefore, that the petitioner improperly raised this claim on direct appeal from the dismissal of his habeas petition.
Ill
The petitioner’s final claim is that the habeas court improperly failed to rule on his posttrial motion for disclosure of certain allegedly exculpatory material. Following the close of the habeas trial, the petitioner filed a motion for disclosure of exculpatory evidence seeking to obtain reports and opinions concerning the bum time of the fire in the victim’s home. The habeas court never mled on this motion.
“ ‘It is elementary that to appeal from the ruling of a trial court there must first be a ruling.’ State v. Kim, 17 Conn. App. 156, 157, 550 A.2d 896 (1988). Without ... a hearing on [a] motion and ultimate findings or rulings of the trial court, there is no record for us to
The judgment is affirmed.
In this opinion the other judges concurred.
Attorney Casteleiro represented the petitioner on appeal before this court in pro hac vice status.
Practice Book § 3-8 provides in relevant part: “Whenever an attorney files an appearance for a party . . . and there is already an appearance of an attorney ... on file . . . the attorney . . . filing the new appearance shall state thereon whether such appearance is in place of or in addition to the appearance or appearances already on file. If the new appearance is stated to be in place of any appearance or appearances on file, the party or attorney filing that new appearance shall serve, in accordance with Sections 10-12 through 10-17, a copy of Uiat new appearance on any attorney or party whose appearance is to be replaced by the new appearance. Unless a written objection is filed within ten days after the filing of an in-lieu-of appearance, the appearance or appearances to be replaced by the new appearance shall be deemed to have been withdrawn