329 Conn. 584
Conn.2018Background
- In 2008 police pursued an SUV after hearing gunshots; a .45 Ruger was found near where items were tossed from the vehicle. Eubanks (front passenger) was arrested and convicted of unlawful possession of a weapon in a motor vehicle and violation of a protective order.
- At trial the state admitted Tanika McCotter’s prior testimony from a Stevens hearing under the former testimony exception (§ 8-6(1)); portions of that transcript included McCotter’s prior statements to police. At the Stevens hearing those prior statements had been admitted for impeachment only.
- Trial counsel (Bansley), who also represented Eubanks at the Stevens hearing, objected to admitting the transcript on confrontation/due process grounds (arguing McCotter was not unavailable and Eubanks lacked an adequate prior opportunity to cross-examine), and negotiated limited redactions; he did not expressly object to portions as double hearsay.
- On direct appeal the Appellate Court affirmed the conviction, relying in part on the Stevens transcript admitted as substantive evidence. Eubanks then petitioned for habeas relief alleging, among other claims, that Bansley rendered ineffective assistance by failing to object to admission of McCotter’s prior statements as double hearsay.
- At the habeas trial petitioner’s counsel elicited no testimony or argument specifically about double hearsay; Bansley testified briefly but was not asked to explain why he did not raise a double-hearsay objection or whether any tactical justification existed. The habeas court denied relief, finding Bansley had adequately objected to the transcript generally.
- The Appellate Court reversed the habeas denial, concluding counsel’s failure to object to the second-level hearsay was objectively unreasonable and prejudicial. The Supreme Court granted certification to address whether the Appellate Court properly reached that merits question.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Appellate Court properly reached the merits of the double-hearsay ineffective-assistance claim | Eubanks: Appellate Court properly considered claim that Bansley was ineffective for not objecting to double hearsay; alternatively, that failure was objectively unreasonable under Strickland | Commissioner: Claim was not distinctly raised at the habeas trial; appellate review of an unpreserved theory is improper | Held: Appellate Court erred. Claim was not distinctly raised or litigated at habeas; record inadequate for review, so merits review improper and reversal of Appellate Court required |
| Whether Bansley’s failure to object to double hearsay constituted deficient performance under Strickland | Eubanks: Failure to identify and object to second-level hearsay was deficient and lacked tactical justification | Commissioner: Burden on petitioner to prove deficiency; no evidence or testimony at habeas to overcome presumption of reasonable strategy | Held: Not reached on merits. Supreme Court explained burden and deference under Strickland and that petitioner failed to present evidence at habeas to prove deficiency |
| Whether petitioner was prejudiced by admission of transcript as substantive evidence | Eubanks: Transcript was critical corroboration; without it, verdict confidence undermined | Commissioner: Prejudice not proved at habeas due to inadequate record | Held: Not decided on merits because underlying performance claim was not preserved for review |
| Whether Golding review could salvage an unpreserved constitutional claim | Eubanks: (Did not pursue Golding on appeal) | Commissioner: Golding not invoked; in any event would not apply where claim could have been raised at habeas trial | Held: Golding review unavailable and would be inappropriate here; petitioner limited to allegations actually presented at habeas trial |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance test and deference to counsel strategy)
- Crawford v. Washington, 541 U.S. 36 (Confrontation Clause analysis relevant to admitting prior testimony)
- State v. Stevens, 278 Conn. 1 (purpose and procedure for Stevens hearing; prior testimony context)
- State v. Golding, 213 Conn. 233 (standard for appellate review of unpreserved constitutional claims)
- Johnson v. Commissioner of Correction, 285 Conn. 556 (preservation requirement and unfairness of appellate review of newly articulated claims)