DEVON TAYLOR v. COMMISSIONER OF CORRECTION
(AC 35133)
Appellate Court of Connecticut
Argued October 9, 2014—officially released January 13, 2015
Beach, Alvord and Keller, Js.
(Appeal from Superior Court, judicial district of Tolland, Bright, J.)
******************************************************
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. In no event will any such motions be accepted before the “officially released” date.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch,
******************************************************
Peter Tsimbidaros, assigned counsel, for the appellant (petitioner).
Lisa A. Riggione, senior assistant state‘s attorney, with whom, on the brief, were Gail P. Hardy, state‘s attorney, and Marcia A. Pillsbury, deputy assistant state‘s attorney, for the appellee (respondent).
Opinion
KELLER, J. The petitioner, Devon Taylor, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court erroneously concluded that (1) the petitioner‘s trial counsel did not render ineffective assistance of counsel for his failure to (a) introduce evidence to impeach the state‘s primary identification witness, (b) introduce evidence to establish that a police officer‘s alleged bias unduly influenced identification evidence, (c) introduce third party culpability evidence, (d) impeach and challenge the admission of expert opinion testimony regarding fingerprint evidence, and (e) object to the trial court‘s errors in its handling of a jury note, (2) the petitioner‘s appellate counsel did not render ineffective assistance of counsel for his failure to raise a claim on appeal related to the trial court‘s errors in its handling of a jury note, and (3) the trial court did not violate his constitutional rights in its handling of a jury note. We affirm the judgment of the habeas court.
The following facts, as apparent in the record or as stated by this court in an earlier appeal and found by the habeas court, and procedural history are relevant to this appeal. On August 27, 1993, “[Jay Murray, the victim,] and Ronald Wightwood, [Murray‘s] companion, were attempting to purchase drugs [in Hartford]. They met the [petitioner] and indicated to him that they wanted cocaine. The [petitioner] and the victim discussed the purchase and the [petitioner] entered the victim‘s pickup truck and drove it to the vicinity of a car wash on Albany Avenue. The [petitioner] exited the truck and retrieved a plastic bag containing a white powdery substance, which he gave to the victim. After the victim sampled and rejected the substance, the [petitioner] drove the truck and its occupants to Milford Street. The [petitioner] left the truck but returned several minutes later and shot the victim with a revolver through the driver‘s side window of the truck. All of those events occurred in the presence of Wightwood. The police found $150 in the truck and also found the [petitioner‘s] fingerprints on the exterior and interior of the truck.” State v. Taylor, 52 Conn. App. 790, 792, 729 A.2d 226 (1999). The victim later died in a hospital.
The petitioner was charged with murder in violation of
Subsequently, the petitioner filed an amended petition for a writ of habeas corpus,
Following a trial to the court, both parties filed posttrial briefs. Approximately seven months after the parties filed their posttrial briefs, the court held a hearing wherein the parties appeared on the record and discussed some of the issues raised before the court. In particular, the court and the parties discussed the petitioner‘s claims pertaining to the trial court‘s handling of the jury note.3 The court then permitted the parties to provide supplemental briefs regarding those claims, which both parties submitted a few weeks thereafter.
The court, Bright, J., subsequently issued a memorandum of decision denying the petition. First, the court concluded
The petitioner filed a petition for certification to appeal from the court‘s judgment, which the court granted. Before filing his appeal with this court, the petitioner filed a motion for reconsideration, which the habeas court denied. The petitioner then filed a motion for rectification, arguing that the habeas court improperly failed to use a structural error analysis to determine whether the trial court had violated his constitutional rights. The habeas court denied his motion. This appeal followed. Additional facts and procedural history will be set forth as necessary.
I
The petitioner claims that the habeas court erroneously concluded that Simon did not render ineffective assistance of counsel on multiple grounds. We disagree and address each ground in turn.
We begin by setting forth the relevant standard of review governing ineffective assistance of counsel claims. “The application of the habeas court‘s factual findings to the pertinent legal standard . . . presents a mixed question of law and fact, which is subject to plenary review. . . .
“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. . . . It is axiomatic that the right to counsel is the right to the effective assistance of counsel. . . . A claim of ineffective assistance of counsel consists
A
First, the petitioner claims that the habeas court erred in concluding that Simon did not render ineffective assistance of counsel for failing to offer certain testimony and introduce certain documents to impeach the state‘s primary identification witness, Wightwood. Specifically, the petitioner claims that Simon should have offered the testimony of Anthony Perez, a detective at the Hartford Police Department who was the first officer to encounter Wightwood after the shooting, or, at a minimum, introduced a police report authored by Perez regarding the shooting. The petitioner further claims that Simon should have introduced a document prepared by Luisa St. Pierre, another detective at the Hartford Police Department. We disagree and address each claim in turn.
1
The petitioner claims that Simon should have offered the testimony of Perez or, at a minimum, introduced a police report authored by Perez. The following additional facts, as found by the court, are relevant here. Perez, who was the first officer to have contact with Wightwood after the shooting, filled out a police report in connection with the shooting. The report contained a “Suspects” section, wherein Perez wrote that the suspected shooter was a black male with a dark complexion, was between twenty-two and twenty-three years old, was between five feet, five inches and five feet, seven inches tall, weighed approximately 160 pounds, had a mustache, and wore a hat and a green shirt.6 Perez did not identify the exact source of the description in his report, although he noted in the report that he had spoken with two witnesses on the night of the shooting, Wightwood and Katrina Davis. Shortly after speaking with Perez, Wightwood was interviewed by St. Pierre. Wightwood orally described the suspect to St. Pierre as a black male with a medium complexion, between twenty and twenty-five years old, five feet, nine inches tall, and having a medium build, a well-groomed mustache, and short hair. The parties stipulated at the habeas trial that the petitioner was a black male and was five feet, ten inches tall. The petitioner claimed before the habeas court that Simon should have offered Perez’ testimony or introduced Perez’ report to impeach Wightwood on the discrepancy between the two descriptions, alleging that Wightwood was the source of the description entered into the “Suspects” section of Perez’ report.
The habeas court rejected this claim, noting that Perez’ report did not specify
On appeal, the petitioner claims that the habeas court erred by concluding that it was unclear whether Wightwood provided the description contained in the “Suspects” section of Perez’ report. The petitioner further claims that Simon rendered ineffective assistance of counsel for failing to call Perez or to introduce his police report, offering the same arguments he presented before the habeas court to support this claim.
We agree with the habeas court‘s analysis of this claim. “[O]ur habeas corpus jurisprudence places a heavy burden on the petitioner to establish that, notwithstanding his conviction, he is entitled to a new trial.” (Internal quotation marks omitted.) Fine v. Commissioner of Correction, 147 Conn. App. 136, 144, 81 A.3d 1209 (2013). It is unclear on the face of Perez’ report who provided the exact description contained in the “Suspects” section and no other evidence sheds light on the issue.8 If Wightwood did not provide that description, then the report would have been useless for the purpose for which the petitioner argues that it should have been presented by Simon, specifically, to impeach Wightwood in relation to any descriptions of the suspected shooter that he provided. Without Perez’ testimony clarifying this ambiguity, the habeas court correctly concluded that the petitioner failed to meet his burden of proving that Simon was deficient for failing to call Perez as a witness or introduce Perez’ report to impeach Wightwood.
For the foregoing reasons, we agree with the habeas court that the petitioner
2
Next, the petitioner claims that Simon should have introduced a document prepared by St. Pierre. The following additional facts, as found by the court, are relevant here. More than one year after the shooting, St. Pierre sent a document entitled “Request For Examination of Physical Evidence” to a forensic laboratory seeking to compare the petitioner‘s fingerprints to those found on the victim‘s truck. St. Pierre wrote in the document that “[o]ne witness riding in the truck was too drunk to make an identification.” The petitioner argued before the habeas court that Simon should have introduced this document to provide the jury with St. Pierre‘s statement that Wightwood was “too drunk to make an identification” in order to undermine Wightwood‘s identification of the petitioner as the suspected shooter. Simon testified at the habeas trial that he was aware of the document during the criminal trial, but chose not to introduce it because he believed it was inadmissible hearsay.
The habeas court rejected this claim. The court explained that, although Simon did not introduce St. Pierre‘s document into evidence, he used the document on cross-examination to orally publish St. Pierre‘s written statement in the document to the jury. The following exchange occurred between Simon and St. Pierre at the criminal trial:
“[Simon]: In fact, when you made out your police report on this matter, you said Mr. Wightwood appeared to be under the influence of alcohol. Did you not?
“[St. Pierre]: Yes.
“[Simon]: And, further, when you made request for examination of physical evidence, that is, the comparison of the fingerprints, you stated that one witness riding in the truck was too drunk to make an identification. Isn‘t that so?
“[St. Pierre]: At that time it appeared that he had been drinking, yes.
“[Simon]: But your statement was that one witness riding in the truck was too drunk to make an identification?
“[St. Pierre]: It appeared to me that he was drunk, yes.”9
Moreover, the court found that both Simon and the prosecution stated in their closing arguments that St. Pierre had determined that Wightwood was “too drunk to make an identification.” The court concluded that it was not “objectively unreasonable” for Simon to forgo introducing the document as an exhibit when St. Pierre‘s statement that Wightwood “was too drunk to make an identification” was provided to the jury through St. Pierre‘s testimony and mentioned by both parties during closing arguments before the jury.10
On appeal, the petitioner claims, using the same arguments he presented before the habeas court, that the habeas court erred in concluding that Simon did not render ineffective assistance of counsel due to his failure to introduce St. Pierre‘s document. We agree with the habeas court‘s analysis of this claim. While we recognize that statements made during closing arguments do not constitute evidence before the jury; see State v. Carter, 122 Conn. App. 527, 533, 998 A.2d 1217 (2010), cert. denied, 300 Conn. 915, 13 A.3d 1104 (2011); we agree that St. Pierre‘s statement regarding Wightwood‘s condition that she wrote in the document was sufficiently provided to the jury through St. Pierre‘s testimony. Simon twice asked St. Pierre whether she believed Wightwood was “too drunk to make an identification” on the night of the shooting. While the jury reasonably could have interpreted St. Pierre‘s first reply, which was that she believed Wightwood “had been drinking, yes,” as nonresponsive, the jury reasonably could have interpreted her second reply, that she believed Wightwood “was drunk, yes,” as an affirmative answer to Simon‘s question. As a result, St. Pierre‘s document would have constituted cumulative evidence of this fact. See Hall v. Commissioner of Correction, 152 Conn. App. 601, 610, 99 A.3d 1200 (counsel‘s decision not to introduce cumulative evidence did not prejudice petitioner), cert. denied, 314 Conn. 950, 103 A.3d 975 (2014).
For the foregoing reasons, we agree with the habeas court that the petitioner has not met his burden to prove that Simon‘s performance was deficient for failing to introduce St. Pierre‘s document to impeach Wightwood. Therefore, the petitioner cannot prevail on his claim of ineffective assistance of counsel on this ground.
B
Second, the petitioner claims that Simon rendered ineffective assistance of counsel because he did not introduce St. Pierre‘s “Request For Examination of Physical Evidence,” as discussed previously in part I A of this opinion, at a pretrial suppression hearing and at trial to establish that St. Pierre exhibited bias against the petitioner. The following additional facts, as found by the court, are relevant here. More than one year after the shooting, St. Pierre presented a photographic array to Wightwood at a Hartford police station. Wightwood identified the petitioner, whose photograph was in the array, as the suspected shooter. The petitioner argues that St. Pierre‘s document established St. Pierre‘s bias against the petitioner because St. Pierre wrote in that document that “[t]he above listed suspect [the petitioner] is the person who pulled the trigger, making every effort to place him in the truck.”
The respondent asserts that this court should not review the petitioner‘s claim because the petitioner did not present it before the habeas court and the habeas court did not address it in its memorandum
C
Third, the petitioner claims that the habeas court erroneously concluded that Simon did not render ineffective assistance of counsel because he did not locate, interview, and offer the testimony of Antoine Williams, who allegedly had information that would have established a third party culpability defense for the petitioner.12 Williams provided the following testimony at the habeas trial. Williams was near the scene of the shooting and saw Anthony Bennefield, whom Williams described as an “associate,” run toward him
The habeas court concluded that, for two reasons, Simon‘s performance was not deficient for failing to find, interview, and call Williams to testify. First, the court found that the petitioner failed to prove that Williams was available for Simon to interview or offer as a witness. There was no evidence produced indicating Williams’ whereabouts from 1995 to 1997, the time during which Simon was preparing for the petitioner‘s criminal trial. The petitioner argued that it was reasonable for the court to infer that Williams was available to Simon because the police had listed Williams as residing at a Hartford address in the petitioner‘s arrest warrant, dated December 29, 1994, and further because Neil Hunt, a private investigator who took written statements from Wightwood and Williams regarding the shooting years after the petitioner‘s conviction, had located Williams in Hartford in 2002. The court declined to make that inference.13 The court also noted that the petitioner had the opportunity to elicit testimony regarding Williams’ whereabouts from 1995 to 1997 during the habeas trial, but failed to do so. Second, the court found that the petitioner failed to prove that Williams would have provided exculpatory testimony at trial. The court found that Williams had provided potentially exculpatory information to Hunt and to the court through his testimony at the habeas trial. Despite this, the court stated that Williams failed to provide the police with the same exculpatory information on the night of the shooting in 1993 and when they interviewed him in 1994. The court thereby concluded that it was unlikely that Williams would have provided Simon with any useful information even if Simon had located and interviewed him
On appeal, the petitioner claims, using the same arguments he presented before the habeas court, that the habeas court erred in concluding that Simon did not render ineffective assistance of counsel for failing to locate and interview Williams, and to introduce Williams’ testimony. We agree with the habeas court‘s analysis of this claim. To argue that Simon rendered ineffective assistance of counsel for failing to offer Williams as a witness, the petitioner had to prove, ” ‘by demonstrable realities’ “; Hopkins v. Commissioner of Correction, 95 Conn. App. 670, 677, 899 A.2d 632, cert. denied, 279 Conn. 911, 902 A.2d 1071 (2006); that Williams was available to Simon while he was preparing for trial. See, e.g., Floyd v. Commissioner of Correction, 99 Conn. App. 526, 532, 914 A.2d 1049 (affirming denial of ineffective assistance of counsel claim where petitioner failed to prove availability of witnesses, contents of testimony and whether testimony would have favorably impacted outcome), cert. denied, 282 Conn. 905, 920 A.2d 308 (2007); Hopkins v. Commissioner of Correction, supra, 677; Lewis v. Commissioner of Correction, 89 Conn. App. 850, 861, 877 A.2d 11 (affirming denial of ineffective assistance of counsel claim where petitioner failed to prove availability of witnesses), cert. denied, 275 Conn. 905, 882 A.2d 672 (2005). Here, it is unclear where Williams resided from 1995 to 1997. As the court found, the petitioner elicited no testimony from Williams as to his residence during that time period. Because the petitioner had the burden to prove Williams’ availability ” ‘by demonstrable realities’ “; Hopkins v. Commissioner of Correction, supra, 677; rather than by mere speculation, we decline to draw the inference that Williams must have lived in Hartford from 1995 to 1997 because the police listed Hartford as his address in 1994 and Hunt located him in Hartford in 2002.
Furthermore, the petitioner failed to meet his burden to prove that Williams would have provided favorable information to Simon prior to the criminal trial. See Thomas v. Commissioner of Correction, 141 Conn. App. 465, 472, 62 A.3d 534 (“[t]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense” [internal quotation marks omitted]), cert. denied, 308 Conn. 939, 66 A.3d 881 (2013); Floyd v. Commissioner of Correction, supra, 99 Conn. App. 532 (ineffective assistance claim fails where petitioner did not prove witnesses were available to testify at criminal trial, what subject of testimony would be and whether testimony would have had favorable impact on trial‘s outcome). As the court correctly found, Williams did not explain his suspicions about Bennefield to the police when they approached him on the night of the shooting or when they interviewed him the following year. Therefore, the petitioner has not proven, ” ‘by demonstrable realities’ “; Hopkins v. Commissioner of Correction, supra, 95 Conn. App. 677; rather than by mere speculation, that Simon would have elicited exculpatory information from Williams to
For the foregoing reasons, we agree with the habeas court that the petitioner has not met his burden to prove that Simon‘s performance was deficient for failing to locate and interview Williams, or to introduce Williams’ testimony to establish a third party culpability defense at the criminal trial. Therefore, the petitioner cannot prevail on his claim of ineffective assistance of counsel on this ground.
D
Fourth, the petitioner claims that the habeas court erred in concluding that Simon did not render ineffective assistance of counsel because he failed to address Zercie‘s expert opinion testimony concerning fingerprint evidence. Specifically, the petitioner claims that Simon should have challenged the admissibility of Zercie‘s opinion that the petitioner was the last individual to touch the victim‘s truck, and sought a disclosure of the summary of Zercie‘s opinion and a basis for Zercie‘s opinion. In the alternative, the petitioner claims that Simon should have impeached Zercie‘s opinion that the petitioner was the last individual to touch the victim‘s truck during the criminal trial. We disagree and address each claim in turn.
The following additional facts, as found by the court or as evident in the record, are relevant here. Zercie testified at the criminal trial that a set of fingerprints belonging to the petitioner was located on or near the victim‘s truck‘s door frame and that, on the basis of his review of the fingerprints, the petitioner was the last person to touch the door frame. At the habeas trial, Simon testified that he consulted with a fingerprint expert prior to the criminal trial, who concluded that the fingerprints belonged to the petitioner. Simon testified that he decided not to call the fingerprint expert as a witness because Simon believed his testimony would have undermined the petitioner‘s defense.
The petitioner argued before the habeas court that Simon should have challenged Zercie‘s conclusions that the petitioner‘s fingerprints were located on the victim‘s truck and that the petitioner was the last person to touch the victim‘s truck. At the habeas trial, the petitioner, through an offer of proof, offered the testimony of Simon Cole, a teacher and researcher in the field of sociology of forensic science, to indicate that Simon could have introduced evidence to challenge the validity of Zercie‘s opinions. The court rejected Cole‘s proffered testimony regarding the reliability of fingerprint identification in 1997, the year of the petitioner‘s criminal trial, as irrelevant, but the court accepted into evidence four articles, predating 1997, that discussed whether the age of fingerprints could be reliably determined. The petitioner also called Leon Kaatz, an attorney, as a legal expert who testified that he agreed with Simon‘s decision not to challenge the fingerprint evidence, calling the fingerprint evidence a “red herring.” Kaatz testified that he would have argued instead that the last person to touch the truck was not necessarily the suspect, and he further would have asked Zercie on cross-examination whether someone could have touched the truck without leaving a print.
The habeas court concluded that Simon did not render ineffective assistance of counsel for his handling of Zercie‘s testimony. Regarding Zercie‘s testimony about the presence of the petitioner‘s fingerprints on the truck, the court credited Simon‘s testimony that he had consulted with a fingerprint expert and, as a matter of trial strategy, relied on the consultation as a reason not to challenge Zercie‘s conclusion that the petitioner‘s fingerprints
Regarding Zercie‘s opinion that the petitioner was the last person to touch the truck, the court rejected the petitioner‘s argument that Simon should have made a greater effort to challenge that conclusion. The court found that Simon did argue at trial, as Kaatz suggested, that a second person may have approached the truck and shot the victim, which mitigated the inference that the petitioner was the shooter because he was the last person to touch the truck. In addition, the court found that it was unclear how Zercie would have answered Kaatz’ question as to whether another individual could have touched the door frame without leaving a print. Without testimony from Zercie at the habeas trial as to his response to that question, the court could not conclude that Zercie‘s answer at the criminal trial would have been favorable to the petitioner. The court also rejected the four articles submitted into evidence by the petitioner concerning the reliability of determining the age of fingerprints, finding them inapplicable because Zercie did not testify to the age of the fingerprints found on the victim‘s truck but rather to the relative time placement between the various fingerprints on the truck. Even if the articles were relevant, the court further found that the petitioner submitted no evidence indicating that a trial attorney practicing in 1997 would have been aware of the articles.
For the foregoing reasons, the court rejected the petitioner‘s claims concerning Simon‘s handling of Zercie‘s expert opinion testimony.
1
The petitioner first claims that Simon rendered ineffective assistance for failing to object to the admission of Zercie‘s testimony that, in his opinion, the petitioner was the last person to touch the victim‘s truck. The petitioner argues that evidence he produced at the habeas trial illustrated that Zercie‘s conclusion was not scientifically valid at the time of the criminal trial. In addition, the petitioner claims that Simon should have sought a disclosure of the summary of Zercie‘s opinion and a basis for Zercie‘s opinion.
The respondent asserts that this court should not review the petitioner‘s claims because the petitioner failed to raise them before the habeas court. We agree. It is axiomatic that we do not review claims on appeal that were not properly raised before the habeas court. See Hedge v. Commissioner of Correction, 152 Conn. App. 44, 59, 97 A.3d 45 (2014). “The principle that a plaintiff may rely only upon what he has alleged is basic. . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations . . . it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised. . . . The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise.” (Citations omitted; internal quotation marks omitted.) Holley v. Commissioner of Correction, 62 Conn. App. 170, 181, 774 A.2d 148 (2001).
Here, the petitioner did not allege in his amended complaint that Simon failed to challenge the admissibility of Zercie‘s testimony or request a disclosure of the summary of his opinion along with the basis of
Furthermore, the petitioner focused his argument in his posttrial brief on Simon‘s alleged failure to impeach Zercie adequately. The petitioner summarily stated that “[t]here is a question as to whether Zercie‘s testimony was even admissible” without further elaboration. Likewise, the petitioner merely listed Simon‘s failure to seek a disclosure of the summary of Zercie‘s testimony and a basis for his opinion as an alleged shortcoming of Simon‘s performance. The respondent did not address these claims in his posttrial brief, which was filed on the same date as the petitioner‘s posttrial brief. Our case law dictates that claims raised by a petitioner for the first time in a posttrial brief are not reviewable by this court when a respondent has no notice of such claims and no opportunity to respond to them in its posttrial brief. See Holley v. Commissioner of Correction, supra, 62 Conn. App. 181 (no review of claim raised for first time in posttrial brief); Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 406–407, 726 A.2d 657 (finding that habeas court improperly reviewed claim raised for first time in posttrial brief), cert. denied, 249 Conn. 920, 733 A.2d 233 (1999).
For the foregoing reasons, we decline to review these claims on appeal.
2
The petitioner next claims that the habeas court erred in concluding that Simon did not render ineffective assistance of counsel for his failure to impeach Zercie‘s opinion that the petitioner was the last person to touch the truck. The petitioner argues that, in accord with Kaatz’ testimony, Simon should have provided an alternate explanation for the presence of the petitioner‘s prints on the victim‘s truck. In addition, the petitioner argues that the time deposition of his fingerprints was a critical issue on which Simon should have challenged Zercie‘s opinion. The petitioner also argues that the habeas court‘s finding that the articles submitted by the petitioner did not cover the scope of Zercie‘s opinion was clearly erroneous and, therefore, that Simon could have used the articles to impeach Zercie.
We agree with the habeas court‘s analysis of this claim. The petitioner suggests that Simon did not address Zercie‘s opinion that the petitioner was the last person to touch the victim‘s truck. As the court correctly found, however, Simon argued during closing arguments that a third party may have approached the truck and shot the victim without leaving a print, undermining the inference that the petitioner was the suspected shooter because he was the last person to touch the truck. Kaatz testified that he would have presented a similar argument. Although Kaatz also would have asked Zercie whether someone could have touched the truck without leaving a print, it is unknown what Zercie‘s answer would have been because he did not testify at the habeas trial. Further, we agree with the court that the four articles submitted by the petitioner at the habeas trial would not have been effective in impeaching Zercie‘s opinion. As the court correctly found, all four articles discussed the determination of the age of fingerprints, which is inapposite to Zercie‘s opinion that the petitioner was the last
For the foregoing reasons, we agree with the habeas court that the petitioner has not met his burden to prove that Simon‘s performance was deficient in his handling of Zercie‘s expert opinion testimony.16 Therefore, the petitioner cannot prevail on his claim of ineffective assistance of counsel on this ground.
E
Finally, the petitioner claims that Simon rendered ineffective assistance of counsel because he failed to object to the trial court‘s decision to seal a jury note without an explanation on the record, its refusal to divulge the contents of the note to counsel, and its instruction to the jury following its receipt of the note. The petitioner further claims that Simon should have sought a mistrial on the basis of the trial court‘s errors. We disagree.
The following additional facts, as found by the habeas court, are relevant here. On the third day of deliberations, the trial court received a jury note signed by the foreperson.17 The note read:
“Judge Barry–I have polled the jury 4 times after various deliberations and discussions. Votes were as follows on the charge of murder:
“10-8-97 4G 5NG 3 undecided
“10-9-97 6G 5NG 1 undecided
“10-9-97 7G 5NG
“10-10-97 7G 5NG
“I started discussion this AM with a proposal to compromise—that is, that we would find [the petitioner] not guilty on murder and move to convict on a lesser charge. This proposal was rejected by 4 jurors.
“Deliberations continued and a 4th vote was taken.
“Next steps??”
“The Court: . . . Let me ask you . . . am I correct, having read your note—would I be correct to state that the jury is in disagreement as to a verdict of guilty or not guilty regarding the first count of murder?
“The Foreperson: Yes, Your Honor. And, therefore, we never got to the second count.
“The Court: I understand. I believe that you have deliberated for a total of somewhere around four hours or approximately a little more. And I may be wrong about that. But both yesterday and today and for a total of four to five hours, I believe, but I‘m not certain. In any event, I believe more deliberations are necessary. I want to remind you that you have to deal with count one as charged first, that is the charge of murder, and reach a unanimous decision of guilt or nonguilt as to that charge, if you possibly can. If your unanimous verdict is guilty, you will move on to count two. If your unanimous verdict on murder in the first count is not guilty, then and only then will you consider lesser included offenses of murder as I instructed you. And then, after having done that, you would move on to count two.
“If you remain in disagreement on the charge of murder after further deliberations, let us know in the same manner with simply a note to the effect that you are in disagreement on the first count, and we will bring you back into court for further instructions.”
After the jury left the courtroom, the court marked the note as a court exhibit and sealed it. The court stated that a verbatim recitation of the note‘s contents was not placed into the record or revealed to counsel, but that counsel knew that the jury was in disagreement about reaching a unanimous verdict on the murder charge and was seeking advice on how to proceed. Counsel did not object to the trial court‘s decision to seal the note or its instruction to the jury following receipt of the note. The note was unsealed for the first time during the habeas trial.
The habeas court rejected the petitioner‘s claim that Simon rendered ineffective assistance of counsel for failing to object to the trial court‘s decision to seal the jury note or failure to permit Simon to address the note. The court first concluded that Simon‘s performance was deficient in regard to the jury note. The court found that the trial court failed to follow
Furthermore, the court found the following regarding Simon‘s performance: Simon did not request, on the record, to see the note; Simon did not object to the court‘s handling of the note; reasonably competent trial counsel would have known the law, as it existed at the time of the petitioner‘s trial, concerning jury notes; reasonably competent counsel would have been aware of his or her client‘s rights to view a jury note and respond to it; there was no strategic or tactical reason not to request, on the record, to view the note; there was no strategic or tactical reason not to object to the court‘s handling of the note; and any off-the-record discussion by Simon with the trial court judge about the note, if it occurred, did not constitute a sufficient substitute for discussing the note on the record. On the basis of these findings, the court concluded that Simon‘s performance was deficient as it related to the trial court‘s handling of the note.
The court proceeded to conclude that Simon‘s deficient performance, as it related to the jury note, did not prejudice the petitioner. The petitioner, in reliance on United States v. Ronder, 639 F.2d 931 (2d Cir. 1981), argued that the trial court‘s instruction to the jury in response to the note constituted a defective, prejudicial “Chip Smith” charge20 that required correction. In Ronder, 639 F.2d at 934, a jury submitted three notes to the trial court on its final day of deliberations. Id. The trial court did not share the contents of any of the notes with defendant‘s counsel and unilaterally responded to each note. Id. The United States Court of Appeals for
The habeas court disagreed with the petitioner and distinguished Ronder on the grounds that, inter alia, the jury here was not deadlocked, the trial court had not provided the jury with a defective Chip Smith charge, but merely instructed the jury to continue deliberating and to reach a verdict on the murder charge before considering any lesser included offenses or the other charge, and there was no evidence that the jury felt time pressured to reach a verdict after receiving the court‘s instruction in response to the note. The court found that the jurors deliberated for at least one hour and one-half after receiving the court‘s instruction and then, following a three day holiday weekend, deliberated for an additional three hours before reaching a verdict.
Furthermore, the habeas court stated that the trial court addressed the note “in the most typical of ways” by instructing the jury in open court to, inter alia, continue deliberating and reach a unanimous verdict on the murder charge before considering lesser included offenses and the other charge. According to the habeas court, a Chip Smith charge was neither provided to the jury nor needed by the jury at that point in its deliberations. Because the trial court‘s response to the note was reasonable, the court determined that Simon would not have suggested any alternative response to the note had the trial court shared the contents of the note with him. The habeas court found that “[t]he petitioner presented no evidence, either from Attorney Simon or [his] expert, Attorney Kaatz, that competent counsel would have done anything differently had they been aware of the note.” On the basis of its foregoing findings, the court concluded that it could “not see how the outcome of the trial could have reasonably been different had the trial court shown [the jury note] to the petitioner and Attorney Simon, and given them an opportunity to respond.”
The petitioner also argued that prejudice was to be presumed under the circumstances of this case because the trial court‘s failure to share the contents of the note with Simon and to permit Simon to provide input into the court‘s response to the note effectuated a “constructive” denial of counsel. See Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (“[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice“). The petitioner cited a Court of Appeals of New York case, People v. O‘Rama, 78 N.Y.2d 270, 579 N.E.2d 189, 574 N.Y.S.2d 159 (1991), to support this proposition. In O‘Rama, 78 N.Y.2d at 275, an individual juror sent a note21 to the trial court indicating that the jury was deadlocked. Id. The trial court, without divulging the contents of the note, unilaterally addressed
The habeas court rejected this argument. First, the court emphasized that, to support his ineffective assistance of counsel claim, the petitioner bore the burden of establishing prejudice by a preponderance of the evidence. The court refused to presume prejudice. Second, the court noted that, in direct appeals, other reviewing courts adjudicating similar issues concerning jury notes performed harmless error analyses, under which a showing that the proclaimed errors affected the outcome of the respective cases was necessary to prevail. Finally, the court distinguished the present case from O‘Rama, noting that the jury in the present case was not deadlocked and did not receive a Chip Smith charge.
For the foregoing reasons, the court concluded that the petitioner failed to prove that Simon‘s deficient performance prejudiced him.24
Furthermore, we agree with the court that this is not one of the rare instances wherein a petitioner need not prove prejudice to establish an ineffective assistance of counsel claim. See Anderson v. Commissioner of Correction, 127 Conn. App. 538, 550, 15 A.3d 658 (2011) (“an ineffectiveness claim predicated on an actual conflict of interest is unlike other ineffectiveness claims in that the petitioner need not establish actual prejudice“), aff‘d, 308 Conn. 456, 64 A.3d 325 (2013). Indeed, as the court found, the Second Circuit has performed harmless error analyses when reviewing, in direct appeals, potential errors committed by trial courts in their handling of jury notes. See, e.g., Morris v. United States, 523 Fed. Appx. 7, 9 (2d Cir. 2013) (summary order); United States v. Collins, 665 F.3d 454, 460–61 (2d Cir. 2012); United States v. Mejia, 356 F.3d 470, 476 (2d Cir. 2004); Krische v. Smith, 662 F.2d 177, 178–79 (2d Cir. 1981); United States v. Ronder, supra, 639 F.2d 934–35.26 We are not persuaded that the circumstances of this case require us to remove from the petitioner the burden to prove prejudice.
Finally, even though it is not binding authority, we also agree with the court that O‘Rama is distinguishable from this case. From the outset, we note that O‘Rama involved a direct appeal on the
For the foregoing reasons, we agree with the court that the petitioner has not met his burden to prove that Simon‘s deficient performance, in relation to the trial court‘s handling of the jury note, prejudiced him. Therefore, the petitioner cannot prevail on his claim of ineffective assistance of counsel on this ground.
II
The petitioner next claims that the habeas court erred in concluding that Falk did not render ineffective assistance of counsel for failing to raise a claim on appeal concerning the sealed jury note.27 We disagree.
We begin by setting forth the relevant standard of review governing ineffective assistance of appellate counsel claims. “Whether the representation a [petitioner] received . . . was constitutionally inadequate is a mixed question of law and fact. . . . As such, that question requires plenary review by this court . . . .
“To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in [Strickland v. Washington, supra, 466 U.S. 687]. Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. . . . In order to satisfy the performance prong, the petitioner must show that appellate counsel‘s representation fell below an objective standard of reasonableness considering all of the circumstances. . . . In order to satisfy the prejudice prong, the petitioner must demonstrate there is a reasonable probability that, but for appellate counsel‘s failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial. . . . [T]o determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm.” (Citations omitted; internal quotation marks omitted.) Santaniello v. Commissioner of Correction, 152 Conn. App. 583, 587–88, 99 A.3d 1195, cert. denied, 314 Conn. 937, 105 A.3d 235 (2014).
On appeal, the petitioner claims that the habeas court erred in concluding that Falk did not render ineffective assistance of counsel for his failure to raise on direct appeal any claims pertaining to the trial court‘s handling of the jury note. The petitioner rehashes the argument he presented before the habeas court that the
We agree with the habeas court‘s analysis of this claim. The petitioner did not call Falk as a witness at the habeas trial and presented no evidence to explain Falk‘s strategy on appeal. Therefore, the petitioner has not met his burden to prove that Falk‘s performance fell below an objective standard of reasonableness under these circumstances. Id. In addition, as we discussed in part I E of this opinion, the petitioner was not prejudiced by the trial court‘s errors in its handling of the jury note. Consequently, the petitioner has not met his burden to prove that he would have prevailed on appeal had Falk raised a claim concerning the jury note. Id.
For the foregoing reasons, we agree with the court that the petitioner cannot prevail on this claim.
III
Finally, the petitioner claims that the court erred in concluding that the trial court did not violate his constitutional rights in its handling of the jury note, as discussed in part I E of this opinion. Specifically, the petitioner claims that the court erroneously performed a harmless error analysis rather than a structural error analysis in reviewing his claim. In the alternative, the petitioner claims that the court erroneously concluded that the trial court committed harmless error in its handling of the jury note. The respondent asserts that this court should not review the petitioner‘s claim because it was not properly raised before the habeas court and it is procedurally defaulted. We agree with the respondent and decline to review the petitioner‘s claim on the basis of our conclusion that it is procedurally defaulted.
In its memorandum of decision, the habeas court explicitly stated that this claim was procedurally defaulted due to the petitioner‘s failure to raise it on direct appeal.29
We agree with the habeas court that the petitioner‘s claim is procedurally defaulted due to his failure to raise it on direct appeal and, therefore, we decline to review it. For this court to review a claim that the petitioner was required to raise on direct appeal but failed to do so, “the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition. . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance.” (Emphasis omitted; internal quotation marks omitted.) Epps v. Commissioner of Correction, 153 Conn. App. 729, 736–37, 104 A.3d 760 (2014).
The petitioner argues that the ineffective assistance of counsel rendered by Simon and Falk led to his failure to raise his claim on appeal. Therefore, he claims that he satisfied the “good cause and prejudice” test. We disagree. As we previously determined in parts I E and II of this opinion, the habeas court correctly determined that the petitioner did not prove that Simon or Falk rendered ineffective assistance of counsel on any ground, including their failure to address the trial court‘s errors in its handling of the jury note. Consequently, the petitioner cannot prove that he satisfied the “good cause and prejudice test” in order to prevail on his ineffective assistance of counsel claim. We, therefore, decline to review this claim.
The judgment is affirmed.
In this opinion the other judges concurred.