DAVID EUBANKS v. COMMISSIONER OF CORRECTION
(AC 36251)
Beach, Keller and West, Js.
Argued October 26, 2015—officially released June 7, 2016
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Deren Manasevit, assigned counsel, for the appellant (petitioner).
Margaret Gaffney Radionovas, senior assistant state‘s attorney, with whom, on the brief, were Michael Dearington, state‘s attorney, and David Clifton, assistant state‘s attorney, for the appellee (respondent).
Opinion
WEST, J. The petitioner, David Eubanks, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus, in which he challenged his conviction for possession of a weapon without a permit in a motor vehicle in violation of
The following facts were set forth by this court in the petitioner‘s direct appeal. State v. Eubanks, 133 Conn. App. 105, 106–10, 33 A.3d 876, cert. denied, 304 Conn. 902, 37 A.3d 745 (2012). “At approximately 6 a.m. on November 22, 2008, Bennett Hines, an officer with the New Haven police department, was sitting in his patrol car. At that hour in the morning there was no vehicle traffic and no cars were parked by the side of the street. Hines heard several gunshots come from the New Haven green in the vicinity of Elm and College Streets, which location was approximately two blocks from where he was parked. When Hines looked in the general direction from which he heard the gunshots fired, he saw a dark colored sport utility vehicle (SUV) turn left from Elm Street onto Church Street. As the SUV turned onto Wall Street, Hines noticed that the tires of the SUV were ‘screeching. . . .’ Based on the speed at which the SUV was traveling and the way it turned onto Wall Street, Hines believed that it was likely that the occupants of the vehicle had discharged the gunshots; as a result he began to follow the SUV. Hines reported the incident to dispatch and activated his cruiser‘s lights and sirens.
“The SUV traveled through the city and onto the entrance ramp to Interstate 91; it ‘would not stop.’ Hines observed a ‘dark colored item come out of the passenger side window’ and ‘a silver colored item come out of the driver side window.’ Based on his training and experience, Hines believed the items thrown out of the windows to be guns. Officer Edward Dunford, who was following behind Hines’ cruiser, also saw ‘something dark colored come flying out of the passenger side of the vehicle. . . .’
“Before entering the highway, the SUV stopped. Hines drew his gun and went to the driver‘s side of the car. Dunford drew his gun and went, with other officers, to the passenger side of the vehicle. Tanika McCotter was operating the SUV, the [petitioner], her boyfriend, was in the front passenger seat and her brother, Jayeron McCotter, was in the rear passenger seat. The [petitioner] initially disobeyed commands from the officers, stepped over the guardrail and ‘look[ed] around him.’ The [petitioner] eventually complied with orders to lie on the ground and was arrested. Tanika McCotter and Jayeron McCotter also were arrested. The officers then searched the area where they believed the items were tossed from the windows of the SUV. Using a thermal imager, Sergeant Peter Moller found a semiautomatic .45 caliber black Ruger handgun, with the safety off and its magazine empty, lying on top of a pile of leaves. No other weapon was found.
“Detective Joshua Armistead investigated the area of College and Elm Streets where the gunshots reportedly had been fired. Armistead found eight .40 caliber shell casings spread out over several car lengths. He stated that the casings ‘looked like they were fired from somebody moving on Elm Street.’ Lieutenant Joseph Rainone, a firearms examiner with the Waterbury police department, determined that the Ruger handgun was operable. He also determined that although the eight shell casings had similar class characteristics, he was unable to conclude whether they had been fired from the same firearm. He was able to determine, however, that the shell casings did not come from the Ruger handgun.2
“The [petitioner] was charged with one count of carrying a pistol or revolver without a permit in violation of
“At trial, the state sought to introduce the testimony of Tanika McCotter from a prior court hearing3 on the ground that she was unavailable to testify at trial. The [petitioner] objected to the admission of the prior testimony on the ground that the state did not exercise due diligence in attempting to locate her and that he did not have the opportunity at the prior hearing effectively and adequately to cross-examine the witness. The court determined that the state had proved that Tanika McCotter was unavailable to testify and overruled the [petitioner‘s] objections to the admission of her prior testimony. Tanika McCotter‘s prior testimony was redacted, as agreed upon by the parties, and was submitted to the jury in transcript form as a full exhibit. Its admissibility is not an issue on appeal.
“In her Stevens testimony, Tanika McCotter testified to the following. She was driving the SUV at the time in question while the [petitioner] was seated in the passenger seat and Jayeron McCotter, her brother, was seated in the back passenger seat. She heard gunshots, ‘kind of freaked out’ and continued to drive until she noticed, as she was about to drive onto the highway, police cruisers following the SUV. She was arrested and taken to a police station. She stated that although she heard gunshots, she never saw a gun on the day in question. While at the police station, she told the detectives, in a recorded statement, that both of the passengers—Jayeron McCotter and the [petitioner]—were shooting guns from the SUV. She initially told the police that she did not see a gun, but that after ‘they pressured for like ever’ and told her she could lose her children if she did not cooperate, she told them that both passengers had fired guns. In response to a question of whether her statement to the police was truthful, she testified: ‘No, I don‘t know where the shots came from.’ She later stated, however, that she was being truthful to the police officers during the interview.
“At the conclusion of the jury trial, the [petitioner] was found guilty of unlawful possession of a weapon in a motor vehicle and of criminal violation of a protective order. He was found not guilty on all other counts. The court imposed a total effective sentence of seven years imprisonment.” (Footnotes in original) Id.
Following the petitioner‘s conviction and this court‘s affirmance of that conviction on direct appeal, he filed a petition for a writ of habeas corpus. In his amended petition for a writ of habeas corpus, the petitioner claimed that his trial counsel, Walter Bansley IV, rendered ineffective assistance in failing to specifically object on hearsay grounds to the substantive use of the portions of Tanika McCotter‘s Stevens testimony during which she was impeached with her statement to police and that, but for his trial counsel‘s ineffectiveness, there was a reasonable probability
Following a habeas trial, the court issued an oral decision denying the petition, and concluding that the petitioner‘s trial counsel did not render ineffective assistance. The court concluded that the petitioner had failed to prove that his trial counsel‘s representation was deficient or that he suffered any prejudice from his trial counsel‘s performance. In reaching its conclusion, the court made several relevant findings of fact, including, inter alia, the following: “[the petitioner‘s trial counsel] also adequately objected to [Tanika] McCotter‘s testimony from the Stevens hearing being introduced into evidence, which the trial court overruled; but at any rate, he was able to redact portions of the testimony that may have been prejudicial to the Petitioner.” The petitioner filed a petition for certification to appeal from the habeas court‘s denial of his petition for a writ of habeas corpus, which the habeas court denied. This appeal followed.
On direct appeal, this court determined that “[o]ur review of the record indicates that the defendant never specifically objected to the admission of Tanika McCotter‘s Stevens testimony—including her statements to the police—as substantive evidence . . . .” State v. Eubanks, supra, 133 Conn. App. 111. Given the petitioner‘s belief that the habeas court‘s finding that the petitioner‘s trial counsel “adequately objected” to McCotter‘s Stevens testimony appeared to be in conflict with this court‘s determination that he “never specifically objected” to McCotter‘s Stevens testimony as substantive evidence, the petitioner filed a motion for articulation requesting the habeas court to articulate several bases for its conclusion that the petitioner‘s attorney rendered constitutionally adequate representation at the petitioner‘s criminal trial.5 The habeas court denied the petitioner‘s motion for articulation, and this court granted the petitioner‘s motion for review in part, ordering the habeas court to address the requests regarding whether its finding constituted a finding that his trial counsel objected to the Stevens testimony and whether it constituted a finding that his trial counsel‘s failure to object to the Stevens testimony was reasonable. In response, the habeas court‘s articulation stated: “(1) [the petitioner‘s trial counsel] objected to the Stevens testimony being introduced into evidence. He did not object on hearsay grounds. The finding that [the petitioner‘s trial counsel] adequately objected is premised factually on the presumption that counsel performed effectively, which the petitioner did not affirmatively rebut with evidence. (2) This court cannot find that [the petitioner‘s trial counsel‘s] failure to object to the Stevens testimony on hearsay grounds was unreasonable,
First, we set forth “the applicable standard of review and procedural hurdles that the petitioner must surmount to obtain appellate review of the merits of a habeas court‘s denial of the habeas petition following denial of certification to appeal. In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme Court] concluded that . . .
Moreover, “[when] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. . . . To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous. . . . [A] finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Anderson v. Commissioner of Correction, 114 Conn. App. 778, 784, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009). For the reasons we set forth, we conclude that the habeas court abused its discretion by denying certification to appeal the petitioner‘s claim.
“To decide if the habeas court abused its discretion by denying certification to appeal, we must look to the merits of the underlying claim of ineffective assistance of counsel. [I]t is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. . . . As enunciated in [Strickland], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel. . . .
The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal because the court improperly denied his claim of ineffective assistance of trial counsel.6 In its articulation, the habeas court concluded that the petitioner did not present evidence to rebut the presumption that his trial counsel rendered effective assistance with respect to the petitioner‘s claim that his trial counsel failed to object on hearsay grounds to the substantive use of portions of Tanika McCotter‘s Stevens testimony during which she was impeached with her statement to the police. With respect to the first prong of Strickland, the petitioner argues that the habeas court erred in concluding that counsel‘s performance was not deficient because there was sufficient evidence presented during the habeas trial to rebut the presumption that his trial counsel exercised reasonable professional judgment. We agree, and therefore, we conclude that the habeas court improperly denied the petitioner‘s ineffective assistance claim against his trial counsel.
“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Antonio A. v. Commissioner of Correction, 148 Conn. App. 825, 829–30, 87 A.3d 600, cert. denied, 312 Conn. 901, 91 A.3d 907 (2014). Nevertheless, that presumption may be overcome by a showing that no conceivable tactical justification for counsel‘s actions existed. See Holloway v. Commissioner of Correction, 145 Conn. App. 353, 367, 77 A.3d 777 (2013).
On direct examination at the habeas trial, the petitioner‘s trial counsel was asked “why did you allow this testimony to come in as a substantive evidence,” to which he stated, “I didn‘t allow it to come in” and “[i]n fact, I objected to it coming in and the court ruled against me and allowed it
When Tanika McCotter testified at the Stevens hearing, her prior statement to police was not admitted as substantive evidence, but rather was marked for identification and used to impeach her testimony. At the petitioner‘s criminal trial, Tanika McCotter could not be found to testify, so the transcript of her Stevens testimony was hearsay that was admissible as former testimony under
The respondent argues that the challenged portions of Tanika McCotter‘s Stevens testimony, during which she was impeached with her statement to police, were admissible. We do not agree. As we have previously stated, those portions of her testimony were inadmissible as substantive evidence. The respondent asserts that those portions of Tanika McCotter‘s Stevens testimony could have been admitted as substantive evidence under the residual exception pursuant to
The failure of the petitioner‘s trial counsel to object to the references in Tanika McCotter‘s Stevens testimony concerning her statement to police indicates that he was unaware of the fact that the references presented an objectionable hearsay issue. He did not indicate in his testimony before the habeas court that he refrained from objecting based on trial strategy. Rather, he testified that his strategy was to object and to prevent Tanika McCotter‘s Stevens testimony from being admitted into evidence for substantive purposes. Given this strategy and the fact that Tanika McCotter‘s Stevens testimony contained inadmissible hearsay, his failure to identify the second level of hearsay within Tanika McCotter‘s Stevens testimony and subsequent failure to object to its use as substantive evidence was not “reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in criminal law.” (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 460, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77 (2006). Furthermore, “[a]n attorney‘s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.” Hinton v. Alabama, 571 U.S. 263, 134 S. Ct. 1081, 1089, 188 L. Ed. 2d 1 (2014). Moreover, a reasonably competent attorney would have known, if his or her strategy had been to object on any ground available, that objecting based on hearsay was valid and likely to have resulted in the portions of Tanika McCotter‘s Stevens testimony referencing her prior statement to police not being admitted for substantive purposes.
This court, in the past, has determined that certification to appeal should have been granted when counsel‘s actions appeared to conflict with what might generally be considered effective representation even though explicitly tactical or strategic. See Gibson v. Commissioner of Correction, 118 Conn. App. 863, 872, 986 A.2d 303 (“[b]ecause this question regarding induced error versus sound trial strategy deserved encouragement to proceed further, the petitioner‘s petition for certification should have been granted“), cert. denied, 295 Conn. 919, 991 A.2d 565 (2010). In Robinson v. Commissioner of Correction, 62 Conn. App. 429, 771 A.2d 952, cert. denied, 257 Conn. 902, 777 A.2d 194 (2001), this court concluded that the habeas court should have granted the petition for certification to appeal where trial counsel had failed to file a motion to have the petitioner treated as a youthful offender where it was clear that the petitioner met all of the statutory requirements of eligibility for the program. This court concluded that the petitioner‘s trial counsel was not ineffective because it was evident from his testimony that he explored the program and he found that the court would likely not grant eligibility, and therefore decided not to file such a motion. Id., 435. Nonetheless, this court still concluded that “[w]hether counsel should have applied for youthful offender treatment was an issue debatable among reasonable jurists” and that the petition for certification should have been granted. Id.
In the present case, the petitioner‘s trial counsel did not assert that he actively chose not to object on hearsay grounds as part of a trial strategy, but rather testified at the habeas trial that “[he] was definitely trying to keep out the transcripts from the Stevens hearing.” Furthermore, he affirmed that he recalls identifying all parts of the testimony to which he could object to when working on redacting the transcripts with the prosecutor, however, the redactions did not address the references within Tanika McCotter‘s Stevens testimony to her statement to police. Therefore, because failing to object to the admission of those references in the Stevens testimony as substantive evidence appears to conflict with what would be considered effective representation, coupled with the fact that his actions were not part of a trial strategy, we conclude that the failure of the petitioner‘s trial counsel to object to the substantive use of those references in Tanika McCotter‘s Stevens testimony, under the facts of this case, amounted to deficient performance.
Having concluded that Strickland‘s performance prong is satisfied, we next turn to the question of whether the petitioner was prejudiced by his trial counsel‘s failure to object. We conclude that the court improperly concluded that the petitioner failed to demonstrate that he was prejudiced as a result of his trial counsel‘s failure to object to the substantive use of those portions of Tanika McCotter‘s Stevens testimony during which she was impeached with her statement to police.
In order to prove prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, supra, 466 U.S. 694. “In a habeas corpus proceeding, the petitioner‘s burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities.” (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 599, 940 A.2d 789 (2008).
In reviewing the merits of an ineffective assistance of counsel claim, “[t]he habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. . . . Historical facts constitute a recital of external events and the credibility of their narrators. . . . Accordingly, [t]he habeas judge, as the trier of [fact], is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. . . . The application of the habeas court‘s factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review.” (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677, 51 A.3d 948 (2012).
On direct appeal, this court stated: “The jury was free to believe the portion of Tanika McCotter‘s Stevens testimony in which she acknowledged telling the police that both of the passengers in the SUV were firing guns. . . . Her testimony would permit a reasonable jury to conclude that, combined with the corroborating testimony of police officers regarding gunshots fired, the location and direction of the SUV and the spent .40 caliber shell casings, the defendant was in actual possession of a weapon in a motor vehicle on the day in question. In sum, when all the corroborating evidence is viewed in light of Tanika McCotter‘s Stevens testimony, there was sufficient evidence from which the jury reasonably could have concluded that the defendant was in actual possession of a gun in a motor vehicle on the day in question.” (Citations omitted; footnote omitted.) State v. Eubanks, supra, 133 Conn. App. 114–15.
Without that portion of Tanika McCotter‘s Stevens testimony, there was very little evidence to establish that the petitioner was in actual possession of a gun in a motor vehicle. The petitioner‘s mere presence in the SUV was an insufficient basis for an inference that he possessed a gun in a motor vehicle. See State v. Watson, 165 Conn. 577, 596, 345 A.2d 532 (1973) (“[i]t cannot be logically and reasonably presumed that an occupant of a motor vehicle knew of the presence of an unregistered weapon in a vehicle simply on the fact that he was an occupant“), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974). In State v. Gerardi, 237 Conn. 348, 353–54, 677 A.2d 937 (1996), shell casings were found inside the vehicle behind the defendant‘s seat which were determined to have come from the machine gun found along the route of pursuit of the vehicle by the police. Although the defendant in Gerardi was originally convicted of possession of a machine gun for an aggressive and offensive purpose in violation of
The petitioner has successfully demonstrated that the result of his ineffective assistance claim involves issues that are debatable among jurists of reason, that a court could resolve the issue in a different manner, and that it presents a question adequate to deserve encouragement to proceed further. Accordingly, we conclude that the habeas court abused its discretion in denying certification to appeal. We further conclude that the court erred in denying the petitioner‘s claim of ineffective assistance of counsel regarding his trial counsel‘s fail-ure to object to the substantive use of Tanika McCotter‘s Stevens testimony.
The judgment is reversed only as to the petitioner‘s claim of ineffective assistance of trial counsel for failure to object to the substantive use of portions of Tanika McCotter‘s Stevens testimony during which she was impeached with her statement to police, and the case is remanded to the habeas court with direction to render judgment granting the petition for a writ of habeas corpus as to this claim and to order a new trial for the petitioner.
In this opinion the other judges concurred.
The more fundamental problem with the respondent‘s reliance on the residual exception is that the Whelan rule; see State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); codified in
“It is well settled that, [a]n out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies. . . . In State v. Whelan, supra, 200 Conn. 743, however, [our Supreme Court] adopted a hearsay exception allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination. This rule has also been codified in