Antwon W. v. Comm'r of Corr.

• Decision Date: 09 May 2017
• Docket Number: AC 37661
• Court: Connecticut Court of Appeals
• Parties: ANTWON W. v. COMMISSIONER OF CORRECTION

172 Conn.App. 843

163 A.3d 1223

ANTWON W.^*

v.COMMISSIONER OF CORRECTION

AC 37661

Appellate Court of Connecticut.

Argued January 10, 2017

Officially released May 9, 2017

Peter Tsimbidaros, assigned counsel, for the appellant (petitioner).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Eva B. Lenczewski, supervisory assistant state's attorney, for the appellee (respondent).

Lavine, Beach and Flynn, Js.

FLYNN, J.

The petitioner, Antwon W., appeals from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus alleging ineffective assistance of counsel. He claims that, contrary to the decision of the habeas court, his trial counsel rendered ineffective assistance by failing to (1) adequately protect his constitutional right to an impartial jury; (2) object to the jury instructions provided by the trial court, Cremins, J .,¹ regarding the proper use of constancy of accusation evidence; (3) adequately cross-examine or otherwise impeach the victim; (4) advise him to accept the state's plea offer rather than proceed to trial; and (5) investigate and call witnesses who would have provided exculpatory testimony. We affirm the judgment of the habeas court.

The petitioner sexually assaulted his twelve year old cousin four times from 2002 through 2003 at his uncle's home. State v. Antwon W ., 118 Conn.App. 180, 181–84, 982 A.2d 1112 (2009), cert. denied, 295 Conn. 922, 991 A.2d 568 (2010). In 2006, the petitioner, who was eighteen years old at the time of the assaults, was convicted of one count of sexual assault in the third degree, six counts of sexual assault in the first degree,² and one count of risk of injury to a child. Id., at 184–85, 982 A.2d 1112. Attorney Gregory St. John represented the petitioner throughout the criminal trial. Judge Cremins sentenced the petitioner to an effective term of fifteen years imprisonment followed by fifteen years of special parole. Id., at 185, 982 A.2d 1112. This court upheld the petitioner's conviction on direct appeal. Id., at 182, 982 A.2d 1112.

Thereafter, the petitioner filed a second amended petition for a writ of habeas corpus setting forth numerous claims of ineffective assistance of counsel.³ As relevant to this appeal, the petitioner alleged that Attorney St. John performed deficiently because he failed to (1) ensure that the petitioner was tried before an impartial jury by neglecting to ask prospective jurors during voir dire whether they had been the victim of sexual assault, and by failing to investigate potential juror bias after one of the jurors expressed concerns during deliberations; (2) object to Judge Cremins' instructions to the jury regarding the proper use of constancy of accusation evidence; (3) adequately cross-examine or otherwise impeach the state's witnesses; (4) provide the petitioner with adequate legal advice regarding the state's plea offers, or advise him that accepting a plea offer, rather than proceeding to trial, was in his best interests; and (5) investigate and call witnesses who could have provided exculpatory evidence.⁴ The petitioner further alleged that, if not for these acts and omissions by Attorney St. John, there was a reasonable probability he would have prevailed in his criminal trial.

A habeas trial was held on September 23 and 24, 2014. Prior to trial, the respondent, the Commissioner of Correction, filed a motion in limine to preclude the petitioner from introducing testimony from the jurors in his criminal trial regarding their deliberative process. The habeas court granted that motion and subsequently denied the petitioner's motion for reconsideration. At the habeas trial, the petitioner testified on his own behalf and presented testimony from Attorney Leon Kaatz, an expert in criminal defense practice. Attorney St. John testified for the respondent. The habeas court denied the petitioner's second amended petition in a memorandum of decision dated December 18, 2014. Following the granting of certification to appeal, this appeal followed. Additional facts and procedural history will be set forth where necessary.

We begin by setting forth our standard of review and the legal principles that govern claims of ineffective assistance of counsel. "The 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 facts, 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).

As the United States Supreme Court articulated in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), "[a] claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment.... Put another way, the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.... Because both prongs ... must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong." (Citations omitted; internal quotation marks omitted.) Thompson v. Commissioner of Correction , 131 Conn.App. 671, 690–91, 27 A.3d 86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011).

Furthermore, in analyzing the performance prong of Strickland , our focus is on "whether counsel's assistance was reasonable considering all the circumstances.... 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....

"Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.... At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Citation omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction , supra, 306 Conn. at 679–80, 51 A.3d 948.

As a preliminary matter, the petitioner argues that we should apply the cumulative error doctrine in determining whether he was prejudiced by Attorney St. John's purported deficiencies. Our appellate courts, however, have consistently declined to adopt this method of review. "When faced with the assertion that the claims of error, none of which individually constituted error, should be aggregated to form a separate basis for a claim of a constitutional violation of a right to a fair trial, our Supreme Court has repeatedly decline[d] to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts." (Internal quotation marks omitted.) Anderson v. Commissioner of Correction , 148 Conn.App. 641, 645, 85 A.3d 1240, cert. denied, 311 Conn. 945, 90 A.3d 976, cert. denied sub nom. Anderson v. Dzurenda , ––– U.S. ––––, 135 S.Ct. 201, 190 L.Ed.2d 155 (2014) ; see State v. Tillman , 220 Conn. 487, 505, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S.Ct. 3000, 120 L.Ed.2d 876 (1992). Because it is not within the province of this court to reevaluate decisions of our Supreme Court; Anderson v. Commissioner of Correction , supra, at 645, 85 A.3d 1240 ; we lack authority under the current state of our case law⁵ to analyze the petitioner's ineffective assistance claims under the cumulative error rule. Moreover, application of the cumulative error rule would not entitle the petitioner to relief because not one of Attorney St. John's purported trial errors constitutes deficient performance under Strickland . See Henderson v. Commissioner of Correction , 104 Conn.App. 557, 567, 935 A.2d 162 (2007), cert. denied, 285 Conn. 911, 943 A.2d 470 (2008).

That threshold issue resolved, and mindful of the above legal principles, we now turn to the petitioner's claims on appeal.

I

The petitioner first claims that the habeas court erred in concluding that Attorney St. John did not render ineffective assistance of counsel by failing to adequately protect his constitutional right to an impartial jury. In support of this claim, the petitioner argues (1) that Attorney St. John was ineffective because, during voir dire, he neglected to ask any of the potential jurors whether they or someone close to them had been the victim of sexual assault; (2) that Attorney St. John was ineffective because he failed to request a more searching inquiry into potential juror bias or...