Britton v. Comm'r of Corr.

• Decision Date: 16 October 2018
• Docket Number: AC 39407
• Court: Connecticut Court of Appeals
• Parties: Abin BRITTON v. COMMISSIONER OF CORRECTION

185 Conn.App. 388

197 A.3d 895

Abin BRITTON

v.COMMISSIONER OF CORRECTION

AC 39407

Appellate Court of Connecticut.

Argued March 8, 2018

Officially released October 16, 2018

Michael W. Brown, assigned counsel, Wethersfield, for the appellant (petitioner).

Michael L. Regan, state's attorney, for the appellee (respondent).

Lavine, Keller and Pellegrino, Js.

LAVINE, J.

The petitioner, Abin Britton, appeals following the second habeas court's denial of his petition for certification to appeal from that court's denial of his second petition for a writ of habeas corpus. On appeal, the petitioner claims that the second habeas court, Fuger, J. , (1) abused its discretion by denying his petition for certification to appeal, and (2) improperly concluded that he was not denied the constitutional right to due process because the jury was not instructed pursuant to State v. Salamon , 287 Conn. 509, 949 A.2d 1092 (2008), to the effective assistance of trial counsel and to the effective assistance of first habeas counsel. Although we agree that the second habeas court abused its discretion by denying the petitioner certification to appeal, we disagree that the court improperly denied his second petition for a writ of habeas corpus and, therefore, affirm the judgment of the second habeas court.

The present appeal has its factual roots in the brutal murder of the victim, James Connor, in the early morning hours of August 23, 1998.¹ See State v. Britton , 283 Conn. 598, 600, 929 A.2d 312 (2007). Pursuant to our plenary review of the petitioner's claims, we have reviewed the entire record, which includes the transcript of the petitioner's criminal trial that was held in November and December, 2004. On the basis of the evidence in the record, we conclude that the jury reasonably could have found that on the night of August 22, 1998, the victim visited his parents on their boat in the Essex Marina and left at approximately 11:30 p.m. to go the Black Seal, an Essex restaurant and bar. Sometime after midnight, he drove his father's Saab to Lucky's Café (Lucky's) in New London in search of cocaine. The petitioner, Gregory Pierre, Jeffrey Smith (perpetrators) and their friend, Junito Jarvis, were present at Lucky's when the victim arrived. The victim approached the petitioner and asked him if he had any crack cocaine. The petitioner did not have any crack "on [him]," but he knew where to get some. The victim drove himself and Pierre to a New London apartment complex where Pierre lived and parked in the parking lot. Jarvis drove the petitioner and Smith to a spot on Michael Road that was adjacent to the parking lot. Jarvis was able to see the Saab and observe the perpetrators from where he was parked.

The victim remained in the Saab, but Pierre went to his apartment. When he returned, Pierre walked to the driver's side of the Saab, where the petitioner and Smith joined him some minutes later. Thereafter, all three of the perpetrators got into the Saab where a struggle ensued. The perpetrators got out of the Saab, and pulled the struggling victim out of the vehicle and beat him until he lay motionless on the ground. Jarvis remained in his car, witnessed the beating and saw the petitioner pick up the victim and put him on the backseat of the Saab. The petitioner told Norman L. Carr that the victim was still alive when he put him in the Saab. The perpetrators got back into the Saab and drove to a parking lot in Bates Woods, a New London park.² At Bates Woods, the perpetrators removed the victim from the Saab and beat him again. The petitioner took a pipe from the Saab, rammed it into the victim's mouth and twisted it.³ The perpetrators dragged the victim's body into Bates Woods and covered it with dirt and plastic bags. During the incident, the perpetrators took an imitation Rolex watch and $90 from the victim.

At approximately 6:30 a.m. on August 23, 1998, the Waterford police discovered the Saab partially submerged in a duck pond behind the police station. They used the license plate number to identify the Saab's owner, the victim's father, Donald Connor. Members of the New London Police Department impounded the Saab, and, along with the state police, conducted an investigation. During their investigation, the police discovered two palm prints on the door posts of the Saab. The windshield of the Saab was cracked and the rear-view mirror was missing. In addition, investigators found red and brown stains inside the Saab, including on the rear seat, the door panels, and the visor over the driver's seat, which led the police to believe that someone had been injured.

In January, 1999, a badly decomposed human body was found in Bates Woods. Harold Wayne Carver II, the state's chief medical examiner, identified the remains as those of the victim and classified the manner of his death as a homicide.⁴ The police identified the petitioner, Pierre and Smith as suspects. At the request of the police, the petitioner accompanied the New London police to the station, provided them with his palm prints and gave them a statement regarding his involvement in the victim's death. He subsequently was arrested, as were Smith and Pierre, and charged in connection with the victim's murder.

On July 10, 2001, the state filed a substitute information, charging the petitioner with six crimes: capital felony in violation of General Statutes § 53a-54b (5), murder in violation of General Statutes § 53a-54a (a), felony murder in violation of General Statutes § 53a-54c, kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), and robbery in the first degree in violation of General Statutes § 53a-134 (a) (1).⁵ Following the presentation of evidence,⁶ a jury of twelve found the petitioner guilty of one count of felony murder, one count of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), two counts of kidnapping in the first degree, and one count of robbery in the first degree. See Britton v. Commissioner of Correction , 141 Conn. App. 641, 645, 61 A.3d 1188, cert. denied, 308 Conn. 946, 67 A.3d 290 (2013).

The trial court, Schimelman, J. , merged the petitioner's manslaughter conviction with the felony murder conviction and rendered judgment in accordance with the jury's verdict. Id. The court sentenced the petitioner to sixty years in prison on the manslaughter conviction, twenty-five years on each of the kidnapping counts and twenty years on the robbery conviction. The kidnapping and robbery sentences were to be served concurrently and consecutive to the manslaughter conviction, resulting in an effective term of eighty-five years in prison. The petitioner's conviction was affirmed on direct appeal to our Supreme Court.⁷ State v. Britton , supra, 283 Conn. at 598, 929 A.2d 312.

After our Supreme Court affirmed the petitioner's conviction, the self-represented petitioner filed a petition for a writ of habeas corpus in November, 2007 (first habeas petition). Appointed habeas counsel amended the first habeas petition, alleging that the petitioner was denied the effective assistance of trial counsel.⁸ See Britton v. Commissioner of Correction , supra, 141 Conn. App. at 646, 61 A.3d 1188. The first habeas court, Schuman, J ., denied the first habeas petition and the petition for certification to appeal. Id. The petitioner appealed to this court. This court dismissed the appeal; id., at 669, 61 A.3d 1188 ; and our Supreme Court denied certification to appeal. See Britton v. Commissioner of Correction , 308 Conn. 946, 67 A.3d 290 (2013).

The self-represented petitioner filed the present petition for a writ of habeas corpus in October, 2011. On March 24, 2016, appointed counsel filed the second revised amended petition (second habeas petition) alleging that the petitioner's constitutional rights were violated because he was denied (1) the effective assistance of trial counsel,⁹ (2) the effective assistance of first habeas counsel¹⁰ and (3) a fair trial because the trial court's jury instruction with respect to the kidnapping charges did not comply with Luurtsema v. Commissioner of Correction , 299 Conn. 740, 12 A.3d 817 (2011), State v. Sanseverino , 287 Conn. 608, 949 A.2d 1156 (2008),¹¹ and State v. Salamon , supra, 287 Conn. at 509, 949 A.2d 1092. With respect to his claim pursuant to Salamon , the petitioner alleged that if the jury had been charged pursuant to Salamon , it would not have found him guilty of either of the counts of kidnapping in the first degree.

The second habeas court denied the second habeas petition in a memorandum of decision issued on June 23, 2016. The court found that (1) the petitioner's claim of ineffective assistance of trial counsel was successive and, therefore, was barred by the doctrine of res judicata; (2) that the petitioner had failed to demonstrate that his first habeas counsel rendered ineffective assistance by failing to prove that trial counsel's performance was ineffective; and (3) a reasonable fact finder clearly could have determined that the petitioner's restraint or movement of the victim was not merely incidental to the other offenses¹² and, therefore, a Salamon instruction was not warranted. The second habeas court denied the petitioner certification to appeal.

The petitioner appealed to this court, claiming that the second habeas court abused its discretion by denying certification to appeal. He also claimed that his constitutional right to due process was violated because he was convicted of kidnapping without the jury having been instructed "to determine whether the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crimes." See State v. Salamon , supra, 287 Conn. at 542, 949 A.2d 1092. In addition, the petitioner claims that his constitutional right to the effective assistance of trial counsel was violated, and that his statutory and...