Britton v. Comm'r of Corr.

• Decision Date: 02 April 2013
• Docket Number: No. 32908.,32908.
• Citation: 61 A.3d 1188,141 Conn.App. 641
• Court: Connecticut Court of Appeals
• Parties: Abin BRITTON v. COMMISSIONER OF CORRECTION.

141 Conn.App. 641

61 A.3d 1188

Abin BRITTON

v.COMMISSIONER OF CORRECTION.

No. 32908.

Appellate Court of Connecticut.

Argued Jan. 7, 2013.

Decided April 2, 2013.

Deren Manasevit, assigned counsel, for the appellant (petitioner).

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

GRUENDEL, BEACH and ALVORD, Js.

GRUENDEL, J.

The petitioner, Abin Britton, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the court erred in finding that his trial counsel did not render ineffective assistance with respect to his attorneys' (1) advice regarding the state's plea offer, (2) failure to offer the petitioner's testimony at a suppression hearing and (3) failure to object to the trial court's instructions to the venire panel. We dismiss the petitioner's appeal.

The record reveals the following facts and procedural history. In the early hours of August 23, 1998, at approximately 1:30 a.m., the petitioner, along with Gregory Pierre and Jeffrey Smith, met the victim, James Connor, at Lucky's Cafe' (Lucky's), located near the Essex Marina. State v. Britton, 283 Conn. 598, 601, 929 A.2d 312 (2007). The victim wanted to purchase crack cocaine, and after the petitioner told the victim that he would be able to get the cocaine, the four men left the bar to conduct the drug transaction. Id.

“The victim bought two small bags of crack cocaine in exchange for $20, and he and the [petitioner], with Pierre and Smith following in a separate vehicle, drove to Pierre's apartment complex in New London so that the victim could use the drugs he had just purchased. Once they arrived at the apartment complex, Pierre, Smith and the [petitioner] pulled the victim out of the [victim's] Saab and beat him. When this attack ceased, the victim was badly injured but still alive. The three men then put the victim into the backseat of the Saab and brought him to a nearby parking lot abutting Bates Woods, a park in New London. They pulled the victim out of the car once more, and this time beat him to death. Pierre, Smith and the [petitioner] then dragged the victim's body into Bates Woods, where they covered the body with dirt and plastic bags. The [petitioner] disposed of the victim's Saab by pushing it into a small pond behind the Waterford police department.” Id., at 601–602, 929 A.2d 312.

At approximately 6:30 a.m. on that day, Harrison Fortier, a Waterford police sergeant, discovered the victim's car, which was registered to his father, partially submerged in the duck pond behind the police station. Id., at 602, 929 A.2d 312. “Upon looking inside the car, Fortier noticed red stains, which led him to believe that someone may have been injured inside.... Police also found two palm prints on the outside of the vehicle, which were later identified as matching the [petitioner's] palms.” Id.

“In January, 1999, a badly decomposed body was found in Bates Woods. Harold Wayne Carver II, chief medical examiner for the state, examined the remains and identified them as belonging to the victim. Carver classified the manner of death as a homicide.

“In the course of their investigation, the police developed a list of three suspects—Pierre, Smith and the [petitioner]—who they believed were responsible for the victim's death. Detectives Thomas Murray of the Connecticut state police and Rod Gaynor of the New London police department visited one of these suspects, the [petitioner], in order to obtain his palm prints. Murray and Gaynor went to the [petitioner's] home and asked him to accompany them to the police station, where they took his palm prints and then turned him over to Detectives James McGlynn of the Connecticut state police and David Gigliotti of the New London police department for questioning.... The [petitioner] gave a statement while at the police station describing his involvement in the victim's death and also drew a diagram of where he said the victim's body was located.” Id., at 602–603, 929 A.2d 312.

The petitioner was, thereafter, arrested and charged with crimes in connection with the victim's death. “The [petitioner] filed a pretrial motion to suppress both his statements and the diagram he had drawn for the police. The [petitioner] claimed that the statements and the map had been procured in the course of a custodial interrogation, but without the necessary Miranda¹ warnings having been given to him. After a hearing, the trial court denied the [petitioner's] motion to suppress.” Id., at 603, 929 A.2d 312.

Following a jury trial, the petitioner was convicted of one count of felony murder in violation of General Statutes § 53a–54c, 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 in violation of General Statutes § 53a–92 (a)(2)(A) and (B), and one count of robbery in the first degree in violation of General Statutes § 53a–134 (a)(1).² The court, thereafter, merged the manslaughter conviction with the felony murder conviction, rendered judgment in accordance with the verdict and sentenced the petitioner to a total effective term of eighty-five years incarceration.

The petitioner appealed directly to the Supreme Court, claiming that the trial court (1) “improperly denied his motion to suppress certain statements he made to police based on the court's conclusion that the [petitioner] was not in custody and therefore could give police a statement regarding his involvement in the murder of the victim ... without having been given Miranda warnings,” and (2) “deprived him of a fair trial and impartial jury by explaining to the jury that if the [petitioner] were found guilty of capital felony, during the penalty phase, the jury would hear evidence regarding the aggravating factor set forth in General Statutes § 53a–46a (i)(1), that is, that the offense charged had occurred during the commission of a felony and that the [petitioner] previously had been convicted of the same felony.” Id., at 600–601, 929 A.2d 312. Affirming the judgment of the trial court, the Supreme Court determined that the trial court had not erred in denying the petitioner's motion to suppress his statements to police, as the petitioner had not proven that “he was subject to custodial interrogation for Miranda purposes”; id., at 606, 929 A.2d 312; and that his second claim, which had not been properly preserved, was not reviewable. Id., at 613, 929 A.2d 312.

Thereafter, the petitioner filed a petition for a writ of habeas corpus, alleging, inter alia, that his trial counsel had rendered ineffective assistance by failing to (1) adequately advise him regarding a plea offer, (2) offer the petitioner's testimony on the circumstances of his giving a statement to police about his involvement in the victim's death and (3) object to the trial court's preliminary instructions to the venire panel. After a trial, the habeas court denied the petition, finding that the petitioner had not met his burden of demonstrating that his trial counsels' assistance was ineffective or that he was prejudiced thereby. The habeas court subsequently denied the petition for certification, and this appeal followed.

“Faced with the habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the [denial] of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994).... First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion.... Second, if the petitioner can show an abuse of discretion, he must prove that the decision of the habeas court should be reversed on the merits....

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further....

“Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but 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.” (Citations omitted; internal quotation marks omitted.) Wright v. Commissioner of Correction, 111 Conn.App. 179, 181–83, 958 A.2d 225 (2008), cert. denied, 290 Conn. 904, 962 A.2d 796 (2009).

“[I]n order to determine whether the petitioner has demonstrated ineffective assistance of counsel, we apply the two part test enunciated by the United States Supreme Court in Strickland [ v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] .... In Strickland ... the United States Supreme Court determined that the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.... The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the [s]ixth [a]mendment.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575–76, 941 A.2d 248 (2008).

“In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. ...