187 Conn. App. 394
Conn. App. Ct.2019Background
- Petitioner Sojournal Hodges was convicted after a jury trial of attempt to commit robbery in the first degree with a firearm (as an accessory) and conspiracy to commit robbery in the first degree with a firearm arising from an attempted store robbery captured on surveillance video.
- Hodges admitted to defense counsel, police, and the court that he was present at the store; the surveillance video showed an unidentified man brandishing what eyewitness Campos described as a pistol while Hodges remained near him.
- Trial counsel Donald Cretella pursued a "mere presence" defense: concede Hodges was at the scene but argue he did not participate in the robbery or conspire with the armed actor.
- Hodges filed a habeas petition alleging ineffective assistance of trial counsel for (1) pursuing the mere presence theory rather than contesting identification or presence and (2) failing to retain a video-forensics expert; he also sought to present a firearms expert at the habeas trial about whether a gun appeared in the video.
- The habeas court denied relief and barred the firearms expert from testifying on the ultimate issue of whether the video depicted a firearm; Hodges appealed with certification.
Issues
| Issue | Plaintiff's Argument (Hodges) | Defendant's Argument (Commissioner) | Held |
|---|---|---|---|
| 1. Whether trial counsel was ineffective for pursuing a "mere presence" defense and not contesting Hodges' presence or identifications | Cretella should have contested Hodges' presence/identification and not conceded facts that harmed Hodges | Cretella reasonably chose a mere-presence strategy because Hodges admitted presence; alibi was not viable and challenging ID would have undercut the defense | Court held counsel's strategy was reasonable and not deficient; no ineffective assistance on this ground |
| 2. Whether counsel was ineffective for not retaining a video-forensics expert to challenge whether the video showed a firearm or Hodges' conduct | An expert could explain video anomalies (banding, low frame rate) that might falsely create the appearance of a firearm or misidentify Hodges' actions | Counsel reasonably declined an expert because strategy was not to dispute the unidentified man’s use of a gun and the video supported mere-presence theory; expert testimony would not have aided that defense | Court held counsel’s investigation and explanation were reasonable; no deficient performance |
| 3. Whether the habeas court abused its discretion by excluding Hodges’ firearms-identification expert from testifying whether a gun appeared in the video | Expert testimony was necessary to assist the trier of fact in determining if the video depicted a firearm | Respondent: presence of a firearm is an ultimate issue for the jury and did not require expert assistance where eyewitness testimony and video were before the factfinder | Court excluded the expert on the ultimate-issue ground; ruled exclusion not an abuse of discretion and likely would have been excluded at trial as well |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance standard requiring deficient performance and prejudice)
- Harrington v. Richter, 562 U.S. 86 (strong presumption that counsel’s conduct falls within wide range of reasonable professional assistance)
- State v. Beavers, 290 Conn. 386 (expert opinion on an ultimate issue admissible only when trier needs expert assistance to decide it)
- Small v. Commissioner of Correction, 286 Conn. 707 (appellate review standards for habeas factual findings and mixed questions of law and fact)