183 Conn. App. 556
Conn. App. Ct.2018Background
- Marcos Mercado was convicted of murder, felony murder (merged into murder), and first‑degree robbery after a jury trial; he received a total effective sentence of 70 years. State v. Mercado, 139 Conn. App. 99, affirmed on direct appeal.
- Facts: Mercado communicated with the victim via AOL on Dec. 24, 2007, visited the victim, performed a sexual act, then shot and killed him; Mercado took the victim’s Xbox and later gave it to a former girlfriend (Laurel Brooks). Mercado confessed in a recorded statement that he shot the victim with an AR‑15 he retrieved from his car trunk. Forensic and digital evidence substantially corroborated the confession.
- At trial, the court granted a motion in limine preventing Brooks from testifying on direct about Mercado’s prior talk of committing crimes, but left the door open if the defense opened it on cross‑examination. The prosecutor later questioned Mercado about those statements on cross and recalled Brooks on rebuttal to elicit that testimony; trial counsel did not object to the recall.
- The AR‑15 (a .223 Bushmaster) recovered from Mercado’s home could not, in its seized condition, fire the .22 fatal bullet according to the state firearms expert, though modifications/adapters could permit such firing; trial counsel did not present a defense firearms expert at the criminal trial.
- Mercado petitioned for habeas relief alleging ineffective assistance of trial counsel: (1) failing to preclude admission of evidence of prior criminal talk/statements and failing to object to recalling Brooks on rebuttal; (2) failing to preclude or challenge firearms/ballistics evidence and failing to call a firearms expert; and (3) failing to preserve appellate issues. The habeas court denied relief and denied certification to appeal; Mercado appealed that denial of certification.
Issues
| Issue | Plaintiff's Argument (Mercado) | Defendant's Argument (Commissioner) | Held |
|---|---|---|---|
| Admission of testimony about Mercado’s prior statements to Brooks | Trial counsel failed to object/preserve; admission was highly prejudicial and would have been excluded if properly preserved | Even if admission was error, overwhelming inculpatory evidence (including Mercado’s confession and corroboration) means no reasonable probability of a different result | Denied—no prejudice shown; no abuse of discretion in refusing certification |
| Firearms/ballistics evidence and failure to call defense expert | Counsel should have excluded AR‑15 evidence or presented expert to show it was not murder weapon; absence allowed misleading inference | State’s expert already told jury the seized AR‑15 could not have fired the fatal .22 round; any defense expert would have been cumulative | Denied—no prejudice; defense expert testimony at habeas confirmed state expert’s point; cumulative testimony would not have changed outcome |
| Failure to preserve appellate issues (Brooks rebuttal) | If trial counsel had objected/preserved, appellate court would have reversed conviction | Habeas record contains no basis showing preserved objection would have produced reversal; defense expert only opined on preservation, not on likely reversal | Denied—petitioner failed to show reasonable probability that appeal outcome would differ |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑pronged ineffective assistance test)
- Simms v. Warden, 229 Conn. 178 (procedural test for appellate review after denial of certification)
- Simms v. Warden, 230 Conn. 608 (same line of authority on certification review)
- State v. Mercado, 139 Conn. App. 99 (Mercado’s direct‑appeal decision summarized factual background and preservation issues)
- Weinberg v. Commissioner of Correction, 112 Conn. App. 100 (prejudice inquiry and effect of strong state case)
- Hall v. Commissioner of Correction, 152 Conn. App. 601 (cumulative evidence and prejudice analysis)
- Eubanks v. Commissioner of Correction, 166 Conn. App. 1 (when exclusion of corroborating testimony is prejudicial)
- State v. Coccomo, 115 Conn. App. 384 (discussed by petitioner; trial‑error vs. case strength analysis)
- State v. Coccomo, 302 Conn. 664 (Supreme Court reversal of this court’s reversal; cited to show limits of petitioner’s reliance)