Pommer v. Commissioner of Correction
2010 Conn. App. LEXIS 558
Conn. App. Ct.2010Background
- Pommer was convicted of first-degree robbery, second-degree robbery, and tampering with a witness; the tampering conviction had been affirmed on direct appeal.
- On habeas review, Pommer challenged his trial counsel's effectiveness and the court's handling of a witness, Poole, invoking the fifth amendment selectively.
- Dakers represented Pommer at trial; evidence showed Poole and Fragola implicated Pommer, with Poole testifying at trial that Pommer had the BB gun.
- The habeas court found trial counsel not ineffective under Strickland and that the evidence without Poole still supported a guilty verdict.
- Pommer argued Poole’s selective fifth-amendment assertions violated due process and prejudiced the outcome; the habeas court denied relief.
- The appellate court reviewed for abuse of discretion and dismissed Pommer’s appeal for lack of reversible error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance of counsel standard | Pommer asserted trial counsel failed to call Walker. | Pommer failed to show prejudice; substantial evidence supported guilt | No abuse of discretion; no prejudice shown |
| Selective invocation of the fifth amendment | Poole’s selective Fifth Amendment claims violated due process and prevented cross-examination | Court allowed selective invocation, appropriate under facts | Permissible; no reversible error |
| Prejudice without Poole’s testimony | Without Poole, conviction would be debatable among jurists | There was sufficient other evidence to sustain conviction | No prejudice; conviction still supported |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance standard: deficient performance and prejudice)
- Mitchell v. United States, 526 U.S. 314 (1999) (limits on witness testimony and self-incrimination in some contexts)
- Brown v. United States, 356 U.S. 148 (1958) (contempt and witness rights in criminal proceedings)
- Taylor v. Commissioner of Correction, 284 Conn. 433 (2007) (abuse-of-discretion standard for habeas review in Connecticut)
- Simms v. Warden, 229 Conn. 178 (1994) (when issues are debatable among jurists of reason, review may proceed)
- Johnson v. Commissioner of Correction, 288 Conn. 53 (2008) (mixed question of law and fact in ineffective assistance review)
- Harris v. Commissioner, 107 Conn.App. 833 (2008) (clear-error standard in habeas fact-finding)
- Simms v. Warden, 229 Conn. 178 (1994) (debatable issues and appropriate appellate review)