COLE v. ROPER

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Docket Number

No. 09-1213.

Advocates

Joseph W. Luby, Public Interest Litigation Clinic, Kansas City, MO, argued (Terri L. Backhus, on the brief), for appellant. Andrew W. Hassell, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., on the brief), for appellee.

Judges

Kermit Edward Bye

Acts

Judiciary And Judicial Procedure — Habeas Corpus — Particular Proceedings — State Custody; Remedies In Federal Courts

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Andre COLE, Appellant v. Donald P. ROPER; Jeremiah W. Nixon, Appellees.

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #221

MINTZ, J.

Presently before the court is a motion for summary judgment brought by the defendants, Hillcrest Park Tax District and Hillcrest Park Association, Inc. In the operative pleading, which is the amended third revised complaint dated October 7, 2008, the plaintiffs, Tom Silberstein and Elizabeth Newman, allege the following facts relevant to the disposition of this motion. The plaintiffs, who own property located at 7 Ricky Beth Lane in Old Greenwich, reside in the Hillcrest Park Tax District and are members of Hillcrest Park Association, Inc. In the operative complaint, the plaintiffs allege that the two defendants are a tax district and association created pursuant to General Statutes § 7-324 et seq., "for the purpose of, among other things, constructing and maintaining drains, storm sewers, roads and other infrastructure in the Hillcrest Park neighborhood that includes the home of the plaintiff[s]." Prior to November 6, 2002, three families in the tax district indicated that they intended to purchase a piece of property known as 54 Hillcrest Park Road. The purpose of purchasing this property was to subdivide it into two lots and construct two new homes. Before commencing this construction project, the plan needed to be approved by a special vote of the members of the defendant tax district. At this special meeting, it was represented to the members of the tax district that: (1) the back house would not be visible from the road; (2) the line of trees on the property would be maintained; (3) the homes would be constructed in a manner consistent with the other homes in the neighborhood; (4) the ambiance of the neighborhood would be maintained and (5) the construction of the houses would not have any adverse environmental impact on the other houses in the neighborhood. Following the approval of the subdivision plan, the homes were constructed, but the plaintiffs allege that they were not built in accordance with the plan or conditions approved at the special meeting.

Although there are many additional defendants in this case, Hillcrest Park Tax District and Hillcrest Park Association, Inc. are the only defendants who are parties to the motion for summary judgment that is presently before the court. Accordingly, they alone will be referred to as "the defendants" in this memorandum of decision.

The plaintiffs allege that since the construction of the houses on CT Page 21602 the 54 Hillcrest Park Road property, they have experienced excessive water flow onto their property. This problem did not exist prior to the construction of the new houses. On numerous occasions since 2004, the plaintiffs have advised the defendants of this "severe and excessive flooding," but the defendants have failed to take any ameliorative measures. At the 2007 annual meeting, the members of the tax district approved a $15,000 expenditure to retain an engineer to conduct a watershed study, but the defendants have refused to hire an engineer. The plaintiffs allege that "[b]y virtue of their position as a tax district and a private association, the defendants owe a fiduciary duty to the plaintiffs because of, among other things, their collection of taxes and/or assessments for the maintenance, construction, and upkeep of drains, storm sewers, roads and other infrastructure in the Hillcrest Park neighborhood." According to the plaintiffs, the defendants have breached this duty because, inter alia, they failed to conduct a watershed study, failed to ensure that the homes were constructed in a manner consistent with the representations made at the special meeting and failed to take any corrective measures to fix the water flow onto the plaintiffs' property. Consequently, in count twenty of the operative complaint, the plaintiffs allege a breach of fiduciary duty claim against the defendants. Furthermore, counts twenty-one and twenty-two allege causes of action for negligence and violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA), respectively. In count twenty-two, the plaintiffs allege that the defendants violated CUTPA because they made statements that were "false, misleading and deceptive and omitted material facts" regarding whether they would adhere to defendants' bylaws when building the houses on the 54 Hillcrest Park Road property.

On February 26, 2010, the defendants filed a motion for summary judgment. Attached to the defendants' motion are: (1) the sworn affidavit of Alfred Heynen, who is an officer of the Hillcrest Park Tax District; (2) the sworn affidavit of Henry Lim, the Hillcrest Park Tax District secretary, which attaches authenticated copies of the Hillcrest Park Association's articles of association, a certificate filed on the Greenwich land records, a certificate regarding the formation of Hillcrest Park Tax District that is filed on the Greenwich land records and the Hillcrest Park Tax district bylaws; (3) certified excerpts of the deposition of Donald T. Ballou, P.E. from November 6, 2009 and February 23, 2010 and (4) certified excerpts of Elizabeth Newman's deposition conducted on April 27, 2009. The plaintiffs filed a memorandum of law in CT Page 21603 opposition on August 13, 2010, which attaches: (1) copies of the minutes and voting record from the November 6, 2002 special meeting; (2) certified excerpts from the April 27, 2009 deposition of Newman; (3) a copy of this court's April 1, 2010 memorandum of decision on another summary judgment motion in this case and (4) certified excerpts from the deposition of Ballou. Finally, on September 9, 2010, the defendants filed a reply memorandum.

"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

On the face of their motion, the defendants list seven grounds as to why they are entitled to judgment as a matter of law. They are as follows: (1) the plaintiffs cannot show that the defendants had any fiduciary duty with regard to flood control or development in the neighborhood; (2) as a governmental entity, the defendants did not have any fiduciary duties to the plaintiffs; (3) as the defendants did not have a duty to the plaintiffs, there was no breach of the CT Page 21604 duty upon which to find negligence; (4) because the allegations of the plaintiffs' complaint implicate discretionary acts, the defendants have governmental immunity; (5) since the plaintiffs would have experienced flooding without the construction of the homes, any actions by the defendants were not the cause in fact of the plaintiffs' injuries; (6) the claims against the defendants are barred by the statute of limitations and (7) CUTPA is inapplicable to the defendants' alleged conduct. The crux of the defendants' fifth argument is that the plaintiffs cannot demonstrate causation because their expert, Donald T. Ballou, has testified in his deposition that the construction project did not cause the flooding of the plaintiffs' residence. In their memorandum of law, the defendants expressly adopt the arguments made by their co-defendants as to this issue. This court has already addressed this matter as to co-defendant Rocco V. D'Andrea, Inc. and the court has determined that are genuine issues of material fact regarding causation. See Silberstein v. 54 Hillcrest Park Associates, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 5004549 (April 1, 2010, Mintz, J.) (denying motion for summary judgment). As the defendants have offered no new arguments on this issue, it can be summarily rejected by the court. Consequently, the court will now address the other arguments raised by the defendants in support of their motion.

As a threshold matter, the court must determine the precise legal status of the defendants. In the operative complaint, the plaintiffs allege that the defendants are a tax district and association created pursuant to General Statutes § 7-324 et seq., which is the section of the General Statutes governing "fire, sewer and other districts." Legally created tax districts are "quasi-municipal corporation[s] . . . Quasi-municipal corporations are governed by the law applicable to municipal corporations." (Citations omitted.) Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 294, 533 A.2d 208 (1987). "Tax districts are specifically authorized and sanctioned by General Statutes § 7-324 et seq. Unquestionably, a . . . tax district serves a traditional governmental function." Beaudette v. Amston Lake Tax District, Superior Court, judicial district of Tolland, Docket No. CV 07 5001240 (October 20, 2008, Sferrazza; J.) ( 46 Conn. L. Rptr. 506, 507). Consequently, as determined by at least one Superior Court judge, tax districts are "equivalent to a municipality for purposes of governmental immunity analysis." Id., 507, citing State ex rel. Maisano v. Mitchell, 155 Conn. 256, 264, 231 A.2d 539 (1967) (holding that "[t]he second taxing district of the city of Norwalk was and is a CT Page 21605 political subdivision of the state" for the purposes of General Statutes § 9-167a). Consequently, this court will treat the defendants as legally analogous to a municipality.

According to the undisputed evidence attached to the defendants' motion for summary judgment, Hillcrest Park Association, Inc. was created by residents on June 2, 1951. Thereafter, the Hillcrest Park Tax District was formed in 1985. In his affidavit, Heynen attests that "[s]ince the formation of the Hillcrest Park Tax District, the Hillcrest Park Tax Association has been moribund because the Tax District has assumed the maintenance activities which the Association previously exercised."

The defendants first move for summary judgment on count twenty, breach of fiduciary duty, on the grounds that: (1) the plaintiffs cannot demonstrate that the defendants had any fiduciary duty with regard to flood control or neighborhood development and (2) government entities do not have fiduciary duties to residents. In their memorandum of law, the defendants argue that there is nothing in the record indicating that the defendants had a duty to represent the interests of the plaintiffs or that the defendants had any superior knowledge, skill or expertise that could give rise to a fiduciary relationship. The defendants further point to the fact that there are no Connecticut cases imposing a fiduciary duty on governmental entities towards their citizens or taxpayers. In response, the plaintiffs cite to language in the defendants' bylaws that purportedly creates a duty to "construct and maintain . . . drains [and] storm sewers." The plaintiffs have also provided the court with appellate cases from other jurisdictions wherein the court determined that a municipality had a duty to maintain drainage systems in the proper manner. According to the plaintiffs, these cases are persuasive authority on the issue of whether the defendants had a fiduciary duty to the plaintiffs. In their reply memorandum, the defendants contend that these out-of-state cases are inapplicable. Moreover, the defendants argue that the language from the bylaws that is cited by the plaintiffs is conditional, and, therefore, it does not establish an affirmative fiduciary duty.

"It is well settled that a fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other." (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38, 761 A.2d 1268 (2000). "In the seminal cases in which [our Supreme Court] has recognized the existence of a fiduciary relationship, the fiduciary was either in a dominant position, thereby creating a relationship of dependency, or was under a specific duty to act for the benefit of another." Id. Conversely, "[i]n the cases in which [the Supreme Court] has, as a matter of law, refused to recognize a fiduciary relationship, the parties were either dealing at arm's length, thereby lacking a relationship of dominance and dependence, or the parties were not engaged in a relationship of special trust and CT Page 21606 confidence." Id., 39. Our Supreme Court has determined that it was appropriate for a trial court to direct a verdict in favor of the defendant when "[t]he plaintiff failed to produce evidence of a unique degree of trust and confidence between the parties such that the defendants undertook to act primarily for the benefit of the plaintiff." (Internal quotation marks omitted.) Id., 41.

Tellingly, the plaintiffs have failed to supply the court with any Connecticut case law holding that a governmental entity has a fiduciary relationship to its residents or taxpayers to maintain a sewer system or control neighborhood development. This result makes sense because the majority of activities conducted by a government are for the benefit of the public as a whole as opposed to certain individuals. Without a close relationship based on trust and a specific duty to act for another, there cannot be a fiduciary relationship. Indeed, under the law of this state, "[i]f the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public and not an individual injury, and must be redressed if at all in some form of public prosecution." (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 166, 544 A.2d 1185 (1988). Moreover, there is no evidence that the plaintiffs were dependent on the defendants such that the defendants held a dominant position over the plaintiffs. Consequently, the court determines that under Connecticut law, government entities such as the defendants do not automatically have a fiduciary duty towards residents such as the plaintiffs.

Accordingly, the question then becomes whether the plaintiffs have raised a genuine issue of material fact regarding the defendants' alleged fiduciary duty by pointing to excerpts from the defendants' bylaws. In their memorandum of law, the plaintiffs only cite to the following section of the Hillcrest Park Tax District bylaws as creating a fiduciary duty on the part of the defendants: "ARTICLE 1. Purposes of the Tax District. The purposes to be accomplished by the formation of the Tax District may be to light the streets; to plant and care for shade and ornamental trees and shrubbery; to construct and maintain roads, sidewalks, crosswalks, gates, drains, storm sewers, sanitary sewers, underground utilities and to install and maintain fire hydrant and water lines required in connection therewith; to establish park security and safety procedures; and to collect garbage, ashes and other refuse matter in any portion of such district and provide for the disposal of such matter." CT Page 21607 (Emphasis added.) Although this section of the bylaws does reference maintaining drains and sewers, the bylaws are couched in conditional language. "The use of the word `may' . . . is in itself a clear indication that a discretionary power, rather than a mandatory duty, was intended." Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428, 226 A.2d 380 (1967). Moreover, as correctly noted by the defendants in their reply memorandum, the 1951 articles of association of the Hillcrest Park Association, Inc. states: "The purposes for which said corporation is formed are the following, to wit: To provide for the care and maintenance of certain roads approximately 9/10ths miles in length as measured from Palmer Hill Road and constituting that portion of said roads which are now paved, said roads being variously known as Hillcrest Terrace, Hillcrest Avenue and Knoll Avenue, being the roads presently maintained by the landowners of said Hillcrest Park . . ." The plaintiffs' residence is located on Ricky Beth Lane, so it is not clear that there was any affirmative duty placed on the defendants to maintain drains and sewers on their street. As a result, the court concludes that the plaintiffs have failed to raise a genuine issue of material fact as to whether the defendants had a fiduciary duty to them, and, accordingly, the court grants summary judgment as to count twenty.

The defendants next argue that they have governmental immunity for their discretionary acts. General Statutes § 52-557n(a)(2) provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." In Connecticut, municipalities have immunity "for the misperformance of ministerial acts, but [have] a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty [that] is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 306, 999 A.2d 700 (2010). In their memorandum of law, the plaintiffs do not dispute that the acts alleged in the operative complaint are discretionary in nature. Rather, the plaintiffs contend that one of the exceptions to governmental immunity applies. "There are three exceptions to discretionary act immunity . . . CT Page 21608 First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . Third, liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . ." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 319-20, 907 A.2d 1188 (2006).

The plaintiffs first argue that the defendants acted with malice, wantonness and intent to injure. In their memorandum of law, the plaintiffs argue that the defendants were aware of the drainage problems experienced by the plaintiffs but "randomly decided to not meet their obligations concerning the structures on the plaintiffs' property despite using the structures to drain water off Hillcrest Park Road. Such conduct is clearly malicious." Furthermore, the plaintiffs point to the fact that the tax district membership approved an expenditure to pay for a watershed study, but no such study ever occurred. In response, the defendants argue in their reply memorandum that their alleged malfeasances clearly do not meet the standard of malice, wantonness or intent to injure. The defendants contend that there is no evidence that they made any misrepresentations to the plaintiffs or otherwise acted in a willful and wanton manner.

"In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Elliot v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998). According to our Supreme Court, "the use of the words `maliciously or wantonly' impliedly excludes conduct characterizable as negligent." Stiebitz v. Mahoney, 144 Conn. 443, 449, 134 A.2d 71 (1957). CT Page 21609

Notably, the only causes of action alleged by the plaintiffs against these defendants are breach of fiduciary duty, negligence and CUTPA. There is no claim brought, or facts alleged, that the defendants acted with an extreme disregard for the rights or safety of the plaintiffs. Rather, the operative complaint mostly sounds in ordinary, or at the worst, gross negligence. An examination of the evidence attached to the plaintiffs' memorandum of law in opposition also fails to reveal any facts that could meet this standard. In their memorandum of law, the plaintiffs cite to the following conduct as being malicious: (1) that the defendants "randomly decided to not meet their obligations concerning the structures on the plaintiffs' property despite using the structures to drain water off Hillcrest Park Road" and (2) the defendants' failure to conduct a watershed study even though an expenditure for the same was approved by the defendants' membership. Neither of these activities rise to the level of willful or wanton misconduct. Instead, at the worst, this conduct demonstrates a failure to act in a reasonable or prudent manner, which is the essence of negligence. For these reasons, this court determines that there is no genuine issue of material fact that this exception to governmental immunity does not apply in the present case.

The plaintiffs also argue that they are identifiable victims subject to imminent harm. In their memorandum of law, the plaintiffs argue that they qualify for this exception because the defendants were aware that they had experienced flooding issues in the past and were at risk to have additional problems unless corrective action was taken. The plaintiffs contend that the defendants' failure to take steps to maintain properly the drainage systems subjected them to imminent harm. In response, the defendants argue that the plaintiffs cannot be considered identifiable victims subject to imminent harm because "[t]he class of possible victims of an unspecified flood that may occur at some unspecified time in the future cannot be narrowed to a group of identifiable persons, and the within plaintiffs are not subject to `imminent harm,' since a flood could possibly have occurred at any future time, or not at all." Consequently, the defendants contend that the identifiable person-imminent harm exception does not apply in this matter.

The identifiable person-imminent harm exception "applies when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . By its own terms, this test requires three CT Page 21610 things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm . . . [The Connecticut Supreme Court has] stated previously that this exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state . . . If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception." (Internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 350, 984 A.2d 684 (2009). "With respect to the identifiable victim element . . . this exception applies not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims . . . [W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care." (Internal quotation marks omitted.) Id., 350-51. "[T]he only identifiable class of foreseeable victims that [our Supreme Court has] recognized for these purposes is that of schoolchildren attending public schools during school hours . . ." (Internal quotation marks omitted.) Id., 352. "Application of this rule has been similarly restrictive outside of the public school context because, in addition to not recognizing any additional classes of foreseeable victims, the decisions reveal only one case wherein a specific plaintiff was held potentially to be an identifiable victim subject to imminent harm for purposes of this exception to qualified immunity. See Sestito v. Groton, [ 178 Conn. 520, 423 A.2d 165 (1979] . . . Sestito appears, however, to be limited to its facts, as the remainder of the case law indicates that this exception has been applied narrowly, because [a]n allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person." (Internal quotation marks omitted.) Id., 353-54.

In Sestito, our Supreme Court determined that it was a jury question as to whether a town could be held liable when its police officer failed to act despite witnessing a brawl and subsequent shooting in a bar parking lot.

When applying the identifiable person-imminent harm exception to the present case, the court's decision in Ellis v. Stratford, Superior Court, judicial district of Fairfield, Docket No. CV 07 5009711 (April 8, 2010, Maiocco, J.T.R.) is instructive. In Ellis, the plaintiffs brought suit against, inter alia, the town of Stratford, and alleged that they suffered flooding on their property as the result of a faulty storm drain located in CT Page 21611 front of the plaintiffs' residence. After the defendant town raised the defense of governmental immunity, the plaintiffs argued that they fit within the identifiable person-imminent harm exception. When rejecting this argument, the court stated that "[t]he duty if any, on the part of the Town and its officers extends to every resident in the Town. Such would not fall in the category of an identifiable class for the purpose of satisfying the exception . . . [A]n unknown class of possible victims of a harm that may or may not occur sometime in the future is not enough to satisfy the exception." (Citation omitted.) Id. Like the plaintiffs in Ellis, the plaintiffs in the present matter were one of many residents of the defendant tax district, and the duty, if any, on the part of the defendants' employees extended equally to all of the defendants' residents and not just the plaintiffs. Moreover, the plaintiffs were not subjected to a specific imminent harm because it would have been nearly impossible for the defendants to predict precisely when the plaintiffs' property was going to flood. Accordingly, the court determines that there are no genuine issues of material fact that the identifiable person-imminent harm exception does not apply to the present case. Having found that none of the exceptions to discretionary act governmental immunity is applicable to these facts, the court grants summary judgment as to count twenty-one sounding in negligence.

Finally, the defendants move for summary judgment as to count twenty-two, CUTPA, on the ground that CUTPA is inapplicable to the conduct allegedly committed by the defendants. In their memorandum of law, the defendants first argue that there was no business relationship between the parties as required under CUTPA. The defendants also argue that they are "analogous to a condominium association" and that it "is settled law in Connecticut that the management and operation of condominium associations are not the exercise of trade or commerce for purposes of liability under CUTPA." Furthermore, the defendants contend that CUTPA does not apply to them because they are the legal equivalent of a governmental entity. The plaintiffs' memorandum of law raises no arguments in opposition to the positions taken by the defendants in support of their summary judgment motion as to this count.

CUTPA provides in relevant part: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b(a). "Although our Supreme Court repeatedly has CT Page 21612 stated that CUTPA does not impose the requirement of a consumer relationship . . . the court also has indicated that a plaintiff must have at least some business relationship with the defendant in order to state a cause of action under CUTPA." (Citation omitted; emphasis in original.) Pinette v. McLaughlin, 96 Conn.App. 769, 778, 901 A.2d 1269, cert. denied, 280 Conn. 929, 909 A.2d 958 (2006). In his affidavit, Heynen attests that "[t]he Tax District does not conduct any commerce, does not engage in any business pursuits and all of its activities are done on a not for profit basis." The plaintiffs neither have alleged nor brought forth any evidence rebutting Heynen's attestations that the parties did not have a business relationship. At the summary judgment stage, "[o]nce the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue." Zielinski v. Kotsoris, supra, 279 Conn. 319. As the plaintiffs have failed to present any opposing evidence or arguments regarding whether the parties had a business relationship, the court determines that there are no genuine issues of material fact as to this count and grants summary judgment.

For all of the reasons stated above, the court grants the defendants' motion for summary judgment as to counts twenty, twenty-one and twenty-two.

terviewed correctional officers at the jail but learned of no potentially relevant testimony. Counsel admitted that she did not investigate any potential witnesses regarding Cole's attendance at religious services and Bible study groups while he was incarcerated and that she was unaware he attended such services in jail. Counsel's primary concern was that Cole had a prior conviction for failure to return to confinement, and that might be a negative issue if she put jail employees on the stand. She felt that a reminder of the prior conviction would outweigh any good character evidence a jail employee could provide.

Cole argues the Missouri court's adjudication of this issue was contrary to or an unreasonable application of Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). In Skipper, the Court held that evidence of a "defendant's disposition to make a well-behaved and peaceful adjustment to life in prison" is relevant mitigating evidence. Id. at 7, 106 S.Ct. 1669. However, while Skipper held that such evidence is relevant and admissible, the failure to put on this evidence does not make counsel's performance deficient. And under our doubly deferential standard of review, it does not mean that the Missouri Supreme Court unreasonably applied Strickland. The district court did not err in denying this point.

D. Claims 7 and 16: Visible Restraint

Cole asserts that the leg brace restraint he was required to wear during his trial was visible to the jurors and that this violated his due process rights, as stated in Deck v. Missouri, 544 U.S. 622, 630-32, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (holding that visibly shackling a defendant during the penalty phase of a capital trial without a justifiable state interest violates due process). Claim 7 pertains to the effect of the restraint on the guilt phase of the trial and Claim 16 pertains to its effect on the sentencing phase. The state argues that Cole has defaulted these claims because they were not raised in either his direct appeal or his postconviction motion, but that even if not defaulted, Cole's claims would fail because the leg restraint was not visible and thereby did not violate Deck. Cole argues that these claims are not procedurally defaulted because he raised them in a motion to recall the mandate, shortly after Deck was decided, and that the claim was raised as soon as possible under Deck. The district court agreed that the Deck claim was not procedurally defaulted because it was raised in the motion to recall the mandate. Cole's 29.15 motion was denied in November 2004, and Deck was decided by the Supreme Court in May 2005. Cole filed his motion to recall the mandate based upon Deck in August 2005, and the Missouri Supreme Court summarily denied this motion later in August 2005.

As noted, Claim 16 involves the restraint during penalty phase issue, and the basis for this claim would not have been available before Deck was decided. But Claim 7 is based upon unjustified restraint during the guilt phase, which has been unconstitutional since 1986 when the Supreme Court decided Holbrook v. Flynn, 475 U.S. 560, 567-S8, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). Cole failed to preserve this claim for review by the state courts, and advances no arguments with regard to cause for or prejudice from the procedural default of this claim. Accordingly, Claim 7 is defaulted. Claim 16 is not defaulted, however, because Cole raised the issue to the state courts as soon as the claim became legally viable (following Deck) in a motion to recall the mandate.

The State of Missouri has previously allowed a defendant to bring a motion to recall the mandate to raise a new constitutional claim. In State v. Whitfield, 107 S.W.3d 253, 265, 268 (Mo. 2003), the Missouri Supreme Court allowed a defendant to bring a new claim in a motion to recall the mandate when his capital sentencing violated the Sixth Amendment principles announced in Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The Whitfield defendant's 29.15 motion had been finally decided prior to Ring, and following Whitfield's motion, the court recalled its mandate and imposed a life sentence. 107 S.W.3d at 270-72. Further, in Nave v. Delo, 62 F.3d 1024, 1032 (8th Cir. 1995), we recognized that in Missouri, a motion to recall the mandate may be employed when a decision of a lower court "is contradicted by subsequent developments in the law."

The district court treated Claim 16 as though it had been adjudicated on the merits by the Missouri Supreme Court's summary denial of the motion to recall the mandate, accorded the decision AEDPA deference, and found that there was no unreasonable application of Deck because the restraint here — a knee immobilizer worn under Cole's pants — was far less visible and obtrusive than those employed in Deck. Cole alleges that the restraint (even though worn under his pants) was visible from the bottom of his pants. He also submitted statements from a juror who "remembered" that Cole was shackled, and another from a juror who thought Cole was handcuffed during trial (which he clearly was not), as well as from family members who opined that the restraint was visible during trial. The district court refused to grant an evidentiary hearing on the issue, dismissed the credibility of the juror statements as the product of faulty memory, and denied the claim.

Cole asserts that at the very least, he was entitled to an evidentiary hearing on this claim. We review the district court's decision denying an evidentiary hearing for an abuse of discretion. Osborne v. Purkett, 411 F.3d 911, 915 (8th Cir. 2005). The AEDPA dictates that an evidentiary hearing may only be held in extremely limited circumstances when the factual basis for a claim was not developed in state court. 28 U.S.C. § 2254(e)(2). However, an evidentiary hearing may also be held when the claim is based upon a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court. Id. § 2254(e)(2)(A).

While Cole arguably relies upon a "new rule of constitutional law" as set forth in Deck, the Supreme Court has not made Deck retroactive to cases on collateral review. Deck itself was a direct appeal from a Missouri conviction. We can find no Supreme Court case making Deck retrospective. Cf. In re Rutherford, 437 F.3d 1125, 1128 (11th Cir. 2006) (holding that Deck is not retroactive for purposes of § 2244's general prohibition on successive habeas corpus petitions). Accordingly, because Cole's claim is not based upon a new retroactive constitutional rule, the district court did not abuse its discretion in refusing to hold an evidentiary hearing on this claim.

Nor did the district court err in refusing to grant relief on the merits of this claim. Deck cannot be the basis for a Missouri court violation of clearly established Supreme Court precedent because it was not decided until after Cole's conviction became final. See Williams v. Norris, 612 F.3d 941, 958 (8th Cir. 2010) ("Williams cannot claim any relief from Deck, because Deck post-dated his trial and the principles articulated therein were not clearly established at that time."). And even considering the merits, our review of the record indicates that Cole was not unconstitutionally shackled within the meaning of Deck. The record indicates that Cole's counsel was not even aware that Cole was restrained, as she thought he was wearing a knee brace because his knee was bothering him. In that regard, the following discussion took place on the record, out of the presence of the jury:

[Cole's Counsel]: This morning, Your Honor, January 15th, I had asked the Court to consider having Mr. Cole's brace taken off of his — either I think it's [sic] left leg. I'm not sure. He had it on last week. And I misunderstood what he was saying. I thought he was [sic] said he was wearing it because his knee was bothering him so I didn't bring this to the Court's attention before I asked the Court this morning and you asked the Department of Justice Services the reason for that.

[Court]: They basically said it was their administrative policy on death penalty cases to implement the leg brace or install the leg brace on the Defendant in these kind of cases where he's in custody. So, if I believe that it may affect his ability in this case to effectively assist his attorney in this case, then I will reconsider that.

[Counsel]: I don't think it will. I think it's uncomfortable. My thought was at first it was because he had to have it on.

Tr. at 1188. Defense counsel and the trial judge spoke further about the fact that Cole was not too uncomfortable to assist in his own defense, and counsel also requested, and was promised, a recess before Cole testified so that the jury would not see him uncomfortably walking to the witness stand. The record reflects that when the jury was brought in for Cole's testimony, he Was already seated at the witness stand.

Considering that his own attorney was unaware that Cole was restrained, it is extremely unlikely that the jury was aware of it. Deck proscribes the routine use of "visible shackles" during the penalty phase of a capital trial. 544 U.S. at 632, 125 S.Ct. 2007. Because Cole was not subject to "visible shackles," the district court properly denied relief on Claim 16.

E. Claims 2 and 13: Prosecutorial Misconduct

Cole contends that statements made by the prosecutor in closing argument, during both the guilt phase (Claim 2) and the penalty phase (Claim 13), were prejudicial to him and made his trial fundamentally unfair. In the guilt phase arguments, Cole objects to the prosecutor: personalizing the evidence by saying, "I can't emphasize enough to you the seriousness of this case nor can I emphasize enough to you the strength of the Spate's case;" accusing Cole of sneaking and creeping around at night and terrorizing Terri; eviscerating Cole's presumption of innocence by stating that defendants are usually "sitting in that chair . . . for a, reason;" calling Cole a "convicted killer;" telling the jury that they can send a message "to the victims of crime, families in St. Louis County, that you can come to the court house and get justice;" and unfairly appealing to the jury's sympathies by reminding them that Terri was a "dying woman." Tr. at 1415-21, 1474-80. In the penalty phase, Cole objects to the prosecutor analogizing the jury to "patriots" who needed to step up to protect society; again reminding jurors that "verdicts do send messages;" and opining that the "death penalty is a weapon we need to have in our arsenal to fight crime." Tr. at 1653-54.

At the time of trial, Terri had been diagnosed with amyotrophic lateral sclerosis (also known as "Lou Gehrig's Disease"), completely unrelated to the incident that resulted in Curtis's death. The record reflects that the effects of the disease had begun to physically affect Terri, and the jury was aware of the diagnosis.

None of these statements were objected to by trial counsel. After noting .that none of these claims were preserved for direct appeal by a timely objection at trial, the Missouri Supreme Court reviewed for plain error and summarily rejected the majority of Cole's claims. Cole I, 71 S.W.3d at 170. The state court discussed the merits of only one prosecutorial argument (the "convicted killer" comment), but still found no error of law. In adjudicating the claim, the court found that the prosecutor had repeatedly referred to Cole as a "convicted felon" during argument, and found the "convicted killer" remark to be a single inadvertent remark which did not prejudice Cole because the jury had already been presented with the precise nature of his actual prior convictions, none of which involved a homicide. Id. The court also found that "[statements made in closing argument will rarely amount to plain error." Id. at 171.

Although we agree that the "convicted killer" comment was clearly improper and several of the other statements were unnecessarily close to the line, the Missouri Supreme Court's adjudication of this claim was not an unreasonable application of, or contrary to, clearly established Supreme Court precedent. The watershed Supreme Court precedent on prosecutorial misconduct is Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), and under Darden, habeas relief is only appropriate if a prosecutor's improper closing argument "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. at 181, 106 S.Ct. 2464 (quotation omitted). In Darden, the prosecutor insinuated that if not given the death penalty, the defendant might be allowed out on work release to kill again, referred to the defendant as an animal who should be on a leash, and asserted that he wished the defendant's face had been "blown off." Id. at 180 n. 9-12, 106 S.Ct. 2464. The Court found that while improper, the comments did not infect the trial with unfairness sufficient to deny petitioner due process. Id. at 181-83, 106 S.Ct. 2464.

The Missouri Supreme Court's conclusion that the prosecutor simply misspoke in calling Cole a convicted "killer" is a factual finding that we presume to be correct. 28 U.S.C. § 2254(e). Cole cannot rebut this presumption. We agree that because of the prosecutor's repeated earlier descriptions of Cole as a "convicted felon," the record supports the conclusion that the use of the word "killer" instead of "felon" in this instance was inadvertent and not unduly prejudicial. Arguments about Cole sneaking around and terrorizing were not improper, unless throwing a tire jack through a glass patio door, conduct admitted by Cole, can somehow not be considered terrorizing. And while we have previously frowned upon "send a message," see Sublett v. Dormire, 217 F.3d 598, 601 (8th Cir. 2000), and personalizing arguments, see Kellogg v. Skon, 176 F.3d 447, 451-52 (8th Cir. 1999), we have also recognized that it will be exceptionally rare that we grant habeas corpus relief on these bases. Sublett, 217 F.3d at 601. The "there for a reason" comment was also ill-advised. However, shortly thereafter, the prosecutor reminded the jury that Cole was entitled to a presumption of innocence. Furthermore, the prosecutor's comment about Terri being a dying woman was simply an unfortunate fact, and one which defense counsel acknowledged in front of the jury before cross-examining her.

Cole argues that the "patriot" statement compares favorably with prosecutorial argument in Weaver v. Bowersox, 438 F.3d 832, 842 (8th Cir. 2006), wherein we affirmed the grant of habeas corpus relief on the basis of improper prosecutorial closing argument. The Weaver prosecutor used a graphic story from a war movie to analogize the jurors to soldiers with a duty to kill, and also implored jurors to kill the defendant as part of the war on drugs. Id. at 836-37. We held that because the prosecutor used an analogy to soldiers, who "have no choice but to kill" and who "follow orders when they kill," the prosecutor improperly "eviscerate[d] the concept of discretion afforded to a jury as required by the Eighth Amendment." M at 840. We found the prosecutor's statements improper because they diminished the jury's sense of responsibility for imposing the death sentence. Id.

The same cannot be said about the statements made by the prosecutor in this case. While the prosecutor did call the jurors "patriots," this is not the same as calling them "soldiers." "Patriot" is a rather generic term defined as "a person who loves, supports, and defends his or her country and its interests with devotion." Webster's Unabridged Dictionary 1422 (2d ed. 1997). It does not commonly include a duty to kill. Nothing in the prosecutor's statements insinuated that the jurors lacked the discretion to decide whether to impose the death penalty. Analogies to war and to soldiers are not comparable to the prosecutor's brief reference to the jurors here as "patriots."

Accordingly, the challenged statements were either not improper, or even if they were, they were not so inflammatory and prejudicial as to render the trial fundamentally unfair and constitute a denial of Cole's due process. The evidence at trial showed, and Cole admits, that he went to Terri's home with a tire iron and broke a glass patio door to gain entrance to the house. Cole then asked the jury to believe that Terri delivered the fatal blows to Curtis, her guest, in an effort to keep Curtis (who was, admittedly, quite large), from hurting Cole. During his testimony, Cole also insinuated that Curtis administered the knife wounds to Terri. The essence of Cole's guilt phase trial boiled down to whether jurors believed Terri or Cole. At the penalty phase, the prosecution presented three aggravating circumstances — that the murder was committed during the attempted homicide of Terri Cole; that it involved depravity of the mind because it was wantonly vile, horrible and inhumane (based upon the excessive number of knife wounds sustained by Curtis); and that it was committed during the perpetration of burglary. The jury found the latter two aggravators beyond a reasonable doubt. When considered in context of the prosecutor's lengthy closing arguments and the evidence presented at both phases of trial, there is no reasonable probability that the prosecutor's statements during closing arguments fatally infected either trial with unfairness or affected the outcome. Accordingly, the Missouri Supreme Court's denial of this claim was not contrary to, or an unreasonable application of, Supreme Court precedent.

F. Claim 20: Cumulative Effect of Errors

In Cole's final claim, he alleges that his constitutional rights were violated by the cumulative effect of the errors asserted in his petition. Our precedent forecloses this argument, Hall v. Luebbers, 296 F.3d 685, 692-93 (8th Cir. 2002), as Cole concedes.

III. CONCLUSION

We affirm the judgment of the district court denying habeas corpus relief.

BYE, Circuit Judge, concurring in part and dissenting in part.

I concur in the court's opinion, with the following exceptions. With respect to Part II. D, I concur in the discussion regarding Claim 7 (guilt phase restraints), but concur only in the result of the resolution of Claim 16 (penalty phase restraints) because it appears Claim 16, even if meritorious, is foreclosed by Williams v. Norris, 612 F.3d 941 (8th Cir. 2010). See id. at 958 ("Williams cannot claim any relief from Deck, because Deck post-dated his trial and the principles articulated therein were not clearly established at that time."). I respectfully dissent from Part II. C because I believe Cole's trial counsel was constitutionally ineffective in failing to investigate and present evidence regarding Cole's exemplary behavior during his pre-trial detention.

Cole alleges his trial counsel should have called two jail employees, William Bradford and Romel Cochrel, and a nun, Sister Judith Klump, during the penalty phase of his trial, Bradford was in charge of the inmates housed on Cole's floor and would have testified Cole was an ideal inmate who followed rules, was mild mannered, and an excellent worker. Bradford would have informed the jury as to Cole being one of the select inmates with a prison job, considered a privilege.

Cochrel, a seasoned jailer, was Cole's housing unit officer and would have testified as to Cole being an exceptional worker with no discipline problems. "[O]ne out every 30 to 40 inmates would be the Andre Cole type. And what I mean by that, you would [ask] somethin' of him once and . . . he would follow through and do what was [asked] of him. He didn't — he didn't allow himself to get caught up in a lot of jail house games." Post-Conviction Hearing Transcript at 286.

Sister Klump ran the jail religious services. She would have testified Cole was an excellent student who knew more than most of the inmates, and that she often asked Cole to start her Scriptures class with a prayer because Cole spoke from the heart.

The Missouri Supreme Court rejected this claim, noting Cole's "trial counsel was a seasoned, death-penalty litigation attorney" who had "tried nineteen capital murder cases" and who testified that "her experience with presenting evidence on a defendant's good behavior in jail was generally ineffective." Cole v. State, 152 S.W.3d 267, 269-70 (Mo. 2004). The Missouri Supreme Court did not specifically address whether trial counsel's investigation into Cole's jailhouse behavior was adequate, but seemed to have implicitly found it to be adequate. See id. at 269 (finding trial counsel "contacted the corrections officers where [Cole] was being confined and investigated [Cole's] behavior while in jail"). The Missouri Supreme Court also stated its belief that the good jailhouse behavior evidence "essentially overlapped" with other evidence presented of Cole's good behavior and concluded trial counsel was "not ineffective for failing to put on cumulative evidence," characterizing trial counsel's decision as a "reasonable choice[] of trial strategy." Id. at 270.

The Missouri Supreme Court's resolution of this issue was unreasonable in two respects. First, the implicit factual determination as to trial counsel conducting an adequate investigation into Cole's jailhouse behavior was an "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). The post-conviction transcript indicates trial counsel did not investigate Cole's jailhouse behavior. Second, because trial counsel's investigation was inadequate, the Missouri Supreme Court's determination that trial counsel made a reasonable choice of trial strategy is "an unreasonable application of [] clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Well-established Supreme Court precedent indicates there must first be an adequate and thorough investigation before trial counsel's choice can be considered a reasonable strategy decision.

A. The Failure to Investigate

Trial counsel in a capital case is "obligat[ed] to conduct a thorough investigation of the defendant's background." Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A capital defendant's lawyer must make diligent efforts "to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citation omitted). Evidence regarding the exemplary behavior of a capital defendant during time he spends in pretrial detention awaiting trial is clearly "relevant mitigating evidence" which a capital defendant has a "right to place before the sentencer." Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).

The Missouri Supreme Court's implicit decision as to Cole's trial counsel having adequately investigated his positive jailhouse behavior is unreasonable. I recognize "[f]indings of fact made by state appellate courts have the same presumptive correctness as findings of fact made by state trial courts," Weaver v. Bowersox, 241 F.3d 1024, 1031 (8th Cir. 2001), but such presumption is overcome in this case.

The transcript of the post-conviction proceedings establishes that trial counsel did not investigate Cole's exemplary jailhouse behavior. She never discovered he was involved in the Scripture class or made any attempt to interview Sister Klump. She never conversed with Bradford or Cochrel, or even made an attempt to determine who Cole's housing unit officer was. Instead, her investigation consisted of seeing correction officers walking around during jailhouse visits with her client. As she would finish visiting Cole she "would say a few things to people. I can't tell you who those people were by name." Postconviction Transcript at 369. This was the full extent of the testimony presented at the post-conviction hearing on trial counsel's purported investigation into Cole's exemplary jailhouse behavior. Saying "things" to jailhouse staff in passing does not constitute an investigation into Skipper-type evidence. A trial counsel's casual conversations with jail staff, with nothing more than an implied suggestion the conversations even related to her client, clearly does satisfy the stringent investigatory duties required by the Supreme Court in capital cases. The Missouri Supreme Court's decision to the contrary is unreasonable.

I am not persuaded by the state's reliance on Skillicorn v. Luebbers, 475 F.3d 965 (8th Cir. 2007). Skillicorn rejected a claim that a capital defendant was prejudiced by his counsel's failure to present Skipper-type evidence of his good behavior while he was in a drug treatment center and at a county jail awaiting trial, recognizing Skipper does not necessarily require an attorney to present positive jailhouse behavior evidence in a capital case. In Skillicorn, however, the defendant's attorney actually investigated the defendant's good behavior in jail before deciding the evidence would not be terribly helpful. 475 F.3d at 975.

As the Supreme Court noted in Strickland, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland [v. Washington], 466 U.S. [668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. On the other hand, strategic choices "resulting from lack of diligence in preparation and investigation [are] not protected by the presumption in favor of counsel." Kenley v. Armontrout, 937 F.2d 1298, 1304 (8th Cir. 1991); see also Wiggins v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (" Strickland does not establish that a cursory investigation automatically justifies a tactical decision. . . . Rather, a reviewing court must consider the reasonableness of the investigation said to support that strategy." ( citing Strickland, 466 U.S. at 691, 104 S.Ct. 2052)).

Armstrong v. Kemna, 534 F.3d 857, 864-65 (8th Cir. 2008); see also Sears v. Upton, ___ U.S. ___, 130 S.Ct. 3259, 3265, 177 L.Ed.2d 1025 (2010) (reiterating the "plain" point that a failure to present evidence cannot be justified as a reasonable tactical decision when "counsel did not fulfill their obligation to conduct a thorough investigation of the defendant's background." (quoting Williams v. Taylor, 529 U.S. at 396, 120 S.Ct. 1495)). The Missouri Supreme Court therefore unreasonably concluded trial counsel made a reasonable choice of trial strategy to forego presenting jailhouse evidence, where there is no evidence Cole's trial counsel actually conducted an investigation, let alone an adequate investigation, into his positive jailhouse behavior.

B. Prejudice From the Failure to Present the Evidence

In Skipper, the Supreme Court reversed a South Carolina court's decision to exclude testimony from two jailers and a regular jail visitor regarding the behavior of a capital defendant during the seven-and-a-half months he spent in pretrial detention awaiting his trial. Significantly, the Supreme Court specifically distinguished the testimony of the two jailers and jailhouse visitor from testimony by Skipper himself and a family member regarding his general good character and adjustment to prison life. South Carolina argued the evidence from the jailers was "merely cumulative" of the evidence offered by the defendant himself and his former wife, and its exclusion was therefore harmless. 476 U.S. at 8, 106 S.Ct. 1669. The Supreme Court rejected that claim, stating:

The evidence petitioner was allowed to present on the issue of his conduct in jail [i.e., from himself and a family member] was the sort of evidence that a jury naturally would tend to discount as self-serving. The testimony of more disinterested witnesses — and, in particular, of jailers who would have had no particular reason to be favorably predisposed toward one of their charges — would quite naturally be given much greater weight by the jury.

Id.

The Supreme Court also addressed whether the failure to present such evidence could result in prejudice, stating:

Nor can we confidently conclude that credible evidence that petitioner was a good prisoner would have had no effect upon the jury's deliberations. The prosecutor himself, in closing argument, made much of the dangers petitioner would pose if sentenced to prison, and went so far as to assert that petitioner could be expected to rape other inmates. Under these circumstances, it appears reasonably likely that the exclusion of evidence bearing upon petitioner's behavior in jail (and hence, upon his likely future behavior in prison) may have affected the jury's decision to impose the death sentence.

Id.

Similar arguments were made by the prosecutor in this case. The prosecutor argued Cole had escalated his level of violence from one encounter with his ex-wife to the next, and thus implied the death penalty was the next step needed to stop the escalation:

When you think about the culmination of things that were done to be fair to him, for this system to be fair to him — he's given probation, no more guns, for this one. How does he respond? Ex parte order violation: Unscrewing the lights to terrorize, to sneak; just like he did in this case. That explosion through the window to terrorize.

No contact. How does he respond to that in 1995? Along with the guns we know what he did. He went back into [] that house.

So, the Court escalates things a little. No contact provisions aren't working. He keeps goin' back. No weapons provisions aren't workin'. So he gets work release.

Do you know why he gets work release? So he can pay his child support. And he still is — you know, in this case he still didn't do that. And then, he gets the jail time. That's the deterrent. Now he's got jail time. Now he'll abide by the rules.

Well guess what? He didn't.

Trial Transcript at 1635-36.

This argument clearly suggests that a progressively punitive response is necessary to control Cole's behavior, from probation, to a no-contact order, to work release, to jail time. The next step implied — the death penalty. In light of this argument, the failure to present evidence of Cole's exemplary behavior in jail may have affected the jury's decision to impose the death penalty.

In Williams v. Taylor, the Supreme Court emphasized not only the important role evidence of good jailhouse behavior plays in a capital case, but also trial counsel's duty to conduct a thorough investigation regarding all reasonably available mitigating evidence. The Supreme Court granted habeas relief to a capital defendant based on his trial counsel's failure to thoroughly investigate and present mitigating evidence, including evidence of his jailhouse behavior while awaiting trial. The Supreme Court noted that trial counsel failed to investigate Williams's prison records, which showed he broke up a drug distribution ring in the facility, and that prison officials described him as being among the "least likely to act in a violent, dangerous or provocative way." 529 U.S. at 396, 120 S.Ct. 1495.

Similar to Cole, Williams took part in a prison ministry program. Id. He also earned a carpentry degree. Id. The Supreme Court held Williams was prejudiced by his trial counsel's failure to discover and present his correctional history to the jury, id. at 398, 120 S.Ct. 1495, despite the fact there were some negative aspects to his correctional history, i.e., he "set fire to his cell while awaiting trial for the murder at hand and has repeated visions of harming other inmates." Id. at 419, 120 S.Ct. 1495 (Rehnquist, C.J., dissenting).

Here, the state argues the positive information about Cole's prison behavior would not have made a difference because it was negated by the unfavorable evidence, that is, Cole failing to report to jail after a work release shift. The problem with the state's argument is two-fold. First and foremost, the jury was already aware of the negative information. Cole's trial counsel failed to counter the negative information already known to the jury with positive information from William Bradford, Romel Cochrel, and Sister Judith Klump. Second, the negative information involved in Williams (setting a jail cell on fire) was much more serious than Cole's negative behavior (failure to report), and yet did not prevent the Supreme Court from finding Williams suffered prejudice from his counsel's failure to investigate and present positive jailhouse behavior.

Given Skipper's distinction between jailhouse behavior testimony directly from jailers, as opposed to similar character evidence from a capital defendant or his family members, the Missouri Supreme Court's decision that Cole's good jailhouse behavior would have merely been cumulative of other evidence of Cole's good behavior is an unreasonable application of Supreme Court precedent. In addition, the emphasis the Supreme Court placed on presenting positive jailhouse behavior in Williams, despite the existence of some negative information, belies Missouri's claim that Cole did not suffer prejudice from his trial counsel's failure to discover and present evidence of his positive jailhouse behavior.

For the reasons stated, I respectfully dissent from the court's decision to affirm the district court's denial of relief on the claim that Cole's trial counsel failed to investigate and present evidence regarding Cole's exemplary prison conduct. I would grant habeas relief on that claim and require Missouri to give Cole a new penalty phase trial.

Andre COLE, Appellant v. Donald P. ROPER; Jeremiah W. Nixon, Appellees.

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