153 Conn.App. 651
Conn. App. Ct.2014Background
- David Haywood was convicted in 2004 of felony murder, conspiracy to commit robbery (reversed on appeal), and first‑degree robbery as an accessory; total sentence 77 years.
- On direct appeal this court reversed conspiracy, remanded robbery as modified to attempted robbery as an accessory, and affirmed the rest; on remand the state nolled conspiracy and Haywood was resentenced unchanged.
- Haywood filed a third amended habeas petition alleging ineffective assistance of trial counsel (Paul Eschuk) and appellate counsel (Glenn Falk). Habeas trial was held and the court denied relief; certification to appeal was granted.
- Trial‑counsel complaints: eliciting testimony that Haywood had $390 when arrested, failing to object to prosecutor’s closing, conceding an attempted robbery occurred, and failing to request an attempt jury charge.
- Appellate‑counsel complaints: inadequate briefing on judgment modification, failure to file a reply brief, and failure to file a motion for reconsideration. Habeas court found counsel decisions were reasonable trial/appellate strategy and petitioner failed to show prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial counsel elicited damaging testimony (the $390) | Eschuk improperly elicited testimony implying Haywood committed the robbery | State/defense: state first elicited the $390; Eschuk introduced unemployment evidence to explain funds | Denied: habeas court found state first raised $390 and Eschuk reasonably countered with lawful source; no ineffective assistance |
| Failure to object to prosecutor’s closing on $390 | Eschuk should have objected and sought curative instruction | Eschuk’s choice to address issue in his own closing was sound strategy | Denied: tactical decision, not deficient performance |
| Conceding that an attempted robbery occurred | Concession prejudiced Haywood by admitting the underlying felony | Defense: nonparticipation defense did not require denying the attempt by others | Denied: acknowledging attempt by others consistent with strategy and not prejudicial |
| Failure to request jury charge on criminal attempt | Omission allowed jurors to rely on own understanding, prejudicing Haywood | Defense: appellate court already held omission harmless beyond a reasonable doubt; a charge would have undermined defense | Denied: no prejudice shown; direct appeal found omission harmless |
| Appellate counsel failed to meaningfully brief judgment modification | Falk inadequately argued modification and effects (e.g., renunciation defense loss) | Falk did argue against modification and sought Supreme Court certification; no record evidence renunciation was available | Denied: habeas court found Falk anticipated and argued modification; renunciation claim speculative |
| Failure to file reply brief addressing state reliance on precedent | Falk should have replied to distinguish John and Jones | No record before habeas showing state’s briefs/oral reliance or that Falk failed to reply | Denied: petitioner failed to meet burden to produce record evidence of prejudice |
| Failure to file motion for reconsideration | Falk should have sought reconsideration to distinguish precedent and challenge harmless‑error conclusions | Falk had already raised the arguments on appeal; reconsideration would have repeated rejected arguments | Denied: no basis shown that reconsideration would have succeeded |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑pronged standard for ineffective assistance of counsel)
- Small v. Commissioner of Correction, 286 Conn. 707 (applies Strickland in Connecticut and discusses prejudice standard on appeal)
- State v. John, 210 Conn. 652 (holds guilty verdict for robbery necessarily encompasses attempt)
- State v. Jones, 193 Conn. 70 (discusses relation between completed robbery and attempt)
- Servello v. Commissioner of Correction, 95 Conn. App. 753 (declares failure to object may be legitimate trial tactic)