Opinion
The petitioner, Willie Young, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly found that (1) his trial counsel was not ineffective in failing to reassert a Bat-son 1 claim during jury selection and (2) his appellate counsel was not ineffective in failing to file a motion for articulation of the trial court’s reasoning in denying a motion to suppress. 2 We affirm the judgment of the habeas court.
A recitation of the underlying facts was set forth in this court’s opinion in
State
v.
Young,
Following a jury trial, the petitioner was convicted of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 and one count of larceny in the second degree in violation of General Statutes § 53a-123. On December 8, 2000, the trial court, Thompson, J., imposed an effective sentence of seventeen years incarceration followed by eight years of special parole. The petitioner filed a direct appeal, and his conviction was affirmed by this court. See id., 394. The petitioner subsequently filed a petition for a writ of habeas corpus, and on September 12, 2005, an amended petition alleging ineffective assistance of his trial counsel, attorney Beth A. Merkin, and his appellate counsel, attorney Mary Anne Royle. After a hearing, the habeas court, Schu-man, J., denied relief in a detañed memorandum of decision. The court subsequently granted a petition for certification to appeal. This appeal foUowed. Additional facts wifi be set forth as necessary.
I
Thе petitioner first claims on appeal that the habeas court improperly denied his claim that his trial counsel provided ineffective assistance to him on the ground that counsel fañed to reassert, during jury selection, a claim under Batson, 3 thus, making it probable that he could not prevail on appeal. We disagree.
The following additional factual and procedural history is relevant to the petitioner’s claim. This court, in
State
v.
Young,
supra,
The state chose to exercise a peremptory challenge to excuse L from jury service. Attorney Merkin objected pursuant to Batson and requested that the state give a race neutral reason for exercising a peremptory challenge. 5 In respоnse, the state explained that L had given contradictory answers to questions about whether “he could follow instructions from the court that he felt, in his heart, he could not agree with.” The state claimed that the fact that L had felt the need to return from the lunch recess with a prepared statement spelling out his opinion was evidence that L’s earlier statements had been contradictory. The state also reasoned that L had had substantial contact with people who had been victims of crimes, as well as people who were incarcerated. The state went on to note that “[o]ne of [the people with whom he is associated] is a person who he is, I guess, intent on corresponding with, who’s a convicted murderer. So, that, I think, it puts him in a kind of different status than a juror the state would typically want.”
The court then asked Merkin, “[d]o you claim those [reasons] are pretextual?” Merkin argued instead that there was no merit to the state’s concern about L having contact with victims of crimes and an ongoing correspondence with a convicted murderer because many African-American males in New Haven have such contacts and that if that were a legitimate reason to excuse a venireperson, then the court would never have any young Afriсan-American males from New Haven serving on juries. Counsel also disagreed with the state that L had given contradictory answers as to whether he would be able to follow the court’s instructions. The court, again, asked, “[s]o, you’re claiming that those
reasons are pretextual? Isn’t that the standard? Whether there is a systematic
Later that afternoon, a Caucasian venireperson, E, was questioned by Merkin and then by the state. 6 At one point, E stated that he knew some individuals who had been arrested, but none of the arrests had been for serious crimes. He also stated that he probably had a family member who had been arrested. Merkin accepted E to be a juror, as did the state.
On direct appeal, the petitioner claimed that the court improperly had failed to find discrimination by the state, due to the prosecutor’s disparate treatment of L and E, who the petitioner alleged possessed similar charаcteristics. This court explained that it would be unfair to require the trial court to conduct a comparative evaluation of the two venirepersons when they were not identified by the petitioner in support of his
Batson
claim and concluded that the petitioner’s “failure to inform the trial court of the full factual basis for the claim rendered] [the] claim unreviewable.” (Internal quotation marks omitted.)
State
v.
Young,
supra,
The habeas court denied relief, finding that “Merkin acted reasonably in not renewing the Batson challenge [after E had been accepted] because a comparison of the voir dire responses of the two venirepersons in question [did] not raise an inference of discrimination.’’ The court found, further, that “there was no basis to infer that the prosecutor’s decision to accept E was a product of bias in favor of white jurors or discrimination against African-American jurors . . . [and] the [petitioner, therefore [had] not overcome the presumption that trial counsel ‘made all significant decisions in the exercise of reasonable professional judgment.’ ”
Initially, we set forth the applicable standard of review. “In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the
“To determine whether the petitioner has demonstrated that counsel’s performance was ineffective, we apply the two part test established in
Strickland
v.
Washington,
In analyzing the first prong of the Strickland test, we conclude that the record does not reveal anything to contradict the habeas court’s conclusion that Merkin’s representation of the petitioner was reasonably competent. The petitioner grounds his claim of ineffective assistance of counsel on the premise that “[d]еspite the similarities” between the two venirepersons, L and E received disparate treatment and that any competent attorney would have recognized this and responded. We disagree.
The voir dire examinations at issue revealed very little similarity between L and E. They worked in different fields of employment. L was involved in social work for an organization that helped mentally disabled adults get jobs and learn to function in society with relative independence, and he previously had worked with an organization through which he taught inner city youths to become leaders. E was a stone mason who ran a small business with his father and described himself аs not being a “very big emotional person . . . .” He mentioned that his wife always tells him that he has no emotion. These differences, while not necessarily
Notwithstanding differences between L and E, the petitioner, nevertheless, asserts that L and E were similarly situated on the ground that they each testifiеd to knowing people who had been arrested, which was significant because the state had justified its exercise of a peremptory challenge as to L, in part, on the ground that he had a friend who was incarcerated. The seriousness of the offenses in question, however, were not similar. E stated that he had friends who had been arrested but that none of the arrests had been for a serious crime. E also stated, when asked if he had any family members that had been arrested, “I’m sure I have. I have twenty-four [aunts and uncles], so I got lots of relatives.” Despite the petitioner’s characterization of this response as an affirmative statеment that he had family members who had been arrested, that claim is no more than supposition. Conversely, L attested to having a good friend who was incarcerated for murder and expressed a desire to renew communication with him.
Additionally, the state expressed a concern that L’s religious devotion could prevent him from following the law as dictated by the court. Wearing a T-shirt that bore verses of scripture, L made statements regarding God as the judge and hesitated before responding to certain questions pertaining to his willingness to set aside his beliefs and accept instructions from the court. E did not make any comments that could reаsonably be interpreted as raising concerns of this nature.
In sum, the record amply supports the conclusion of the habeas court that there would have been no reason that, after hearing the voir dire of E, a reasonably competent attorney should have found it necessary, or appropriate, to renew a
Batson
challenge regarding L. Thus, the habeas court correctly determined that the petitioner failed to show that Merkin had acted in a manner outside of the “range of competence displayed
by lawyers with ordinary training and skill in the criminal law”; (internal quotation marks omitted)
Turner
v.
Commissioner of Correction,
supra,
II
The petitioner next claims that the habeas court improperly concluded that he received effective assistance of appellate counsel. Specifically, the petitioner alleges that because Royle failed to file a motion for articulation and to ensure that there was an adequate record before the Appellatе Court regarding his motion to suppress, this court declined to review his claim that the trial court improperly declined to suppress the in-court identification of him by Cole. The petitioner claims, thus, that he was unsuccessful in what would, otherwise, have been a successful appeal.
On direct appeal, the petitioner alleged that the court improperly denied his motion to suppress the in-court
identification of him by Cole. The petitioner alleged that the in-court identification violated his right to due process because Cole had attended the petitioner’s arraignment at the suggestion of the office of the victim advocate, which he alleged constituted an identification compelled by state action. Id., 408. Additionally, the petitioner alleged that Cole’s viewing of the petitioner at the arraignment constituted an unnecessarily suggestive identification procedure. Id., 409. In the dirеct appeal, this court reached the following conclusion:
At the habeas hearing, the petitioner claimed that he had received ineffective assistance of appellate counsel because, inter alia, Royle had failed to file a motion for articulation of the trial court’s reasons for denying the motion to suppress Cole’s in-court identification of the petitioner. The court rejected the petitioner’s claim on the ground that Royle “could not reasonably have anticipated that the Appellate Court would require articulation in this situation.” The habeas court went on to explain that “[t]his case is not one in which the trial court did not decide the issue raised on appeal. On the contrary, as acknowledged by the Appellate Court, the trial court did decide the issue of whether the identification of the petitioner at the arraignment played any improper role in the subsequent in-court identification of the petitioner by Cole.” The habeas court also concluded that the trial court’s ruling appeared to have addressed the necessary issues and that it did so with reasonable clarity. The habeas court noted that because the state did not argue on appeal that the trial court’s ruling was not sufficiently clear, Royle would not have been alerted to a need for a motion for articulation in that regard. The court also cited recent decisional law in which this court did not find it necessary to have detailed findings from the trial court in order to review denials of motions to suppress, and, also, opinions in which this court reviewed the denial of a motion in which the trial court had not articulated its reasoning. See
State
v.
Harris,
Additionally, the habeas court, quoting
Small
v.
Commissioner of Correction,
Initially, we set forth the relevant standard of review. As noted previously, “our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.)
Francis D.
v.
Commissioner of Correction,
supra,
The petitioner’s claim readily may be disposed of by reference to the prejudice prong. The petitioner has failed to meet his burden of prоving that but for Royle’s allegedly improper conduct he would have been successful in his direct appeal. Because both prongs of the test for ineffective assistance of counsel must be met for a petitioner to succeed, and because we conclude that the petitioner has failed to establish the prejudice prong of the test, we need not analyze whether Royle’s conduct amounted to ineffective performance. See
Weinberg
v.
Commissioner of Correction,
Whether or not Royle should have filed a motion for articulation with the trial court in order to provide a record of the court’s reasons for denying the motion to suрpress Cole’s in-court identification, the petitioner did not show, at the habeas proceeding, that, but for Royle’s failure to request an articulation, he would have prevailed on appeal.
In support of his claim on appeal, the petitioner highlights statements from this court’s opinion from his direct appeal in which we noted that the trial court, in ruling on the motion to suppress, did not make any findings regarding the suggestiveness of the arraignment proceedings and did not explain which factors it considered in making the determination that the in-court identification was rehable. Even if the trial court had articulated those reasons, however, one can only speculate as to how such an exposition would have beneficially
As noted, the trial court specifically found that Cole’s ability to give an in-court identification was based on information independent of the arraignment. Thus, even if the trial court made a finding that the arraignment proceedings were suggestive, that does not lead to the conclusion that Cole’s attendance at the proceedings in any way affected his ability to identify the petitioner at trial. In sum, there is no basis for concluding that an articulation by the trial court would have had any effect on the outcome of the petitioner’s aрpeal.
The habeas court found, and we agree, that the trial court’s factual determination that Cole’s identification of the petitioner was independent of the arraignment proceeding, was well supported by the testimony from the hearing on the motion to suppress. Because the petitioner failed, at the habeas hearing, to demonstrate that he would have been successful on appeal had Royle obtained an articulation from the trial court, he failed to prove that he was deprived of the effective assistance of appellate counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
Batson
v.
Kentucky,
In the alternative, the petitioner asks this court to exercise its supervisory powers to correct a substantial injustice by reviewing his claim that the trial court improperly denied his motion to suppress two eyewitness identifications of him. “Appellate courts possess an inherent supervisory authority over the administration of justice. . . . [0]ur supervisory authority [however] is not a form of free-floating justice, untethered to legal principle. . . . [0]ur supervisory powers are invoked only in the rare circumstance
where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . (Internal quotation marks omitted.)
State
v.
Elson,
In
Batson,
the United Supreme Court held that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that [members of one race] as a group will be unable impartially to consider the State’s case against [a defendant of the same race].” (Internal quotation marks omitted.)
State
v.
Rodriguez,
We refer to venirepersons by initial to protect their legitimate privacy interests. See, e.g.,
State
v.
Wright,
“Under Connecticut law, [o]nce a [party] asserts a
Batson
claim, the [opposing party] must advance a neutral explanation for the venireperson’s
removal. . . . The [party asserting the
Batson
claim] is then afforded the opportunity to demonstrate that the [opposing party’s] articulated reasons are insufficient or pretextual. . . . [T]he trial court then [has] the duty to determine if the [party asserting the
Batson
claim] has established purposeful discrimination. . . . The [party asserting the
Batson
claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination.” (Internal quotation marks omitted.)
State
v.
Collazo,
The record does not reflect clearly that E was Caucasian. However, because the parties have treated E as such throughout the petitioner’s direct appeal and the habeas trial, we will proceed on that assumption.
The petitioner also argued before the habeas court that Merkin was ineffective in that she failed to raise a dual motivation claim where the state proffered two purportedly race neutral reasons for its peremptory challenge as to L and then accepted E as a juror. The habeas court disposed of that claim in a footnote in which it concluded that there was no fаctual foundation for a claim of that nature. On appeal, the petitioner does not challenge that portion of the court’s decision.
The petitioner’s motion to suppress also attempted to exclude the identification of the petitioner by Chesmar on the ground that it was unnecessarily suggestive. The claim of suggestiveness was that after Chesmar picked the petitioner’s photograph out of an array provided by the police, she asked the police whether she had picked the person who was a former employee of the Family Dollar store, and the police informed her that she had. Sеe
State
v.
Young,
supra,
On appeal, however, this court did not review the claim on the ground that it was briefed inadequately. Id. The petitioner later claimed before the habeas court that Royle’s failure to brief this issue adequately amounted to ineffective assistance of his appellate counsel. The court found that Royle did inadequately brief the issuе but that the petitioner had failed to prove prejudice. The court found that because the allegedly suggestive remark by the police occurred after Chesmar had made the identification of the petitioner, it could not have influenced her identification, and, thus, the petitioner could not show that he would have been successful but for Royle’s failure to brief the issue properly. The petitioner does not challenge the court’s ruling as it pertains to Chesmar’s identification.
In order to prevail on a claim challenging an eyewitness identification the claimant must satisfy a two-pronged test: “first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances.” (Internal quotation marks omitted.)
State
v.
Randolph,