Cabral v. Commissioner of Correction, No. 27929.

• Decision Date: 27 May 2008
• Docket Number: No. 27929.
• Citation: 946 A.2d 1278,108 Conn.App. 1
• Court: Connecticut Court of Appeals
• Parties: John CABRAL v. COMMISSIONER OF CORRECTION.

946 A.2d 1278

108 Conn.App. 1

John CABRAL v. COMMISSIONER OF CORRECTION.

No. 27929.

Appellate Court of Connecticut.

Argued January 10, 2008.

Decided May 27, 2008.

Mary Boehlert, special public defender, for the appellant (petitioner).

Stephen M. Carney, senior assistant state's attorney, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (respondent).

BISHOP, McLACHLAN and HARPER, Js.

HARPER, J.

The petitioner, John Cabral, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus in which he alleged that he was denied the effective assistance of trial counsel. The petitioner claims that the court improperly determined that (1) trial counsel's failure to present testimony from him at a suppression hearing was not prejudicial to him and (2) trial counsel's failure to object to the admissibility of certain evidence at trial was not an instance of deficient representation. We affirm the judgment of the habeas court.

In 2000, a jury found the petitioner guilty of conspiracy to possess one kilogram or more of marijuana with intent to sell in violation of General Statutes §§ 53a-48 and 21a-278(b) as well as attempt to possess one kilogram or more of marijuana with intent to sell in violation of General Statutes §§ 53a-49(a)(1) and 21a-278(b). The trial court rendered judgment in accordance with the verdict and sentenced the petitioner to a total effective term of imprisonment of eight years, suspended after six years, and five years probation.

The petitioner brought a direct appeal to this court, and this court reversed the judgment of conviction and remanded the case for a new trial. State v. Cabral, 75 Conn.App. 304, 815 A.2d 1234 (2003), rev'd, 275 Conn. 514, 881 A.2d 247, cert. denied, 546 U.S. 1048, 126 S.Ct. 773, 163 L.Ed.2d 600 (2005). After our Supreme Court granted the state's petition for certification to appeal, our Supreme Court reversed the judgment of this court and upheld the judgment of conviction. State v. Cabral, 275 Conn. 514, 517, 881 A.2d 247, cert. denied, 546 U.S. 1048, 126 S.Ct. 773, 163 L.Ed.2d 600 (2005).

Our Supreme Court summarized the facts that the jury reasonably could have found on the basis of the evidence presented at trial: "In 1995, the [petitioner] met David Levarge, who lived next door to the [petitioner's] mother-in-law. The [petitioner and Levarge] became friends and routinely socialized. In or about 1997, the [petitioner] introduced Levarge to his friend, Robert Anderson, and the three men became friends.

"In early October, 1998, Anderson approached the [petitioner] to purchase some marijuana, but the [petitioner] said he had none. Anderson then told the [petitioner] that he knew someone named `Pete' from California from whom he could buy marijuana. Subsequently, Anderson ordered three pounds of marijuana from Pete for which he and the [petitioner] agreed to pay $3000. They also decided to have the marijuana delivered to Levarge's house because the [petitioner] did not want the police to trace the marijuana to his house.

"Sometime in mid-October, 1998, Anderson learned from the [petitioner] and Levarge that the marijuana had not yet arrived. Anderson contacted Pete, who informed him that the marijuana had been shipped to and received at the address provided. Pete asked for telephone numbers for the [petitioner] and Levarge.

"On October 28, 1998, Levarge, who did not testify at trial, went to the state police barracks in Montville and spoke to Trooper Robert Bardelli. From there, the two men proceeded to Levarge's home. When they arrived, the telephone rang. The answering machine picked up, and a voice said that Levarge `had better show up with the package he was supposed to have.'

"Shortly thereafter, Levarge climbed into a crawl space in his home and retrieved three pounds of marijuana, which he handed to Bardelli. Bardelli notified his supervisor and assembled a team of officers to come to Levarge's home where they formulated a course of action. Bardelli requested that Levarge make a telephone call to Anderson. In that conversation, which was monitored and recorded by the state police, Levarge told Anderson that he now had the marijuana. He also explained that he had not been home to receive the shipment because he had taken his son to a physician and that he had told that to the [petitioner]. He told Anderson that he would leave the package in the backseat of his son's car and that Anderson should have the [petitioner] pick it up.

"On that same day, at approximately 7:30 p.m., the police fabricated a package and placed it in Levarge's son's vehicle, which was parked at Levarge's residence. At approximately 8:45 p.m., the [petitioner] appeared and retrieved the package from the vehicle. As the [petitioner] began to depart, the police left their surveillance locations, announced their presence, converged on the [petitioner] and arrested him. Bardelli testified that he read the [petitioner] his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), at the time of his arrest.

"The police then drove the [petitioner] to a gasoline station approximately five minutes from Levarge's house. While in the police cruiser at the gasoline station, the [petitioner] told the police that Anderson had sent him to pick up the [marijuana]. When the police asked him to put his statement in writing, he declined and stated that he wanted to consult with an attorney." (Internal quotation marks omitted.) State v. Cabral, supra, 275 Conn. at 518-19, 881 A.2d 247.

In 2002, while awaiting the disposition of his direct appeal, the petitioner brought an amended petition for a writ of habeas corpus. The petitioner alleged that his confinement was illegal because his trial counsel, John O'Brien, rendered ineffective assistance in many ways and thereby violated his due process right to a fair trial. Relevant to the claims raised on appeal, the petitioner alleged that O'Brien improperly "failed to present the testimony of witnesses with exculpatory testimony at pre-trial motions and trial, including but not limited to testimony of [the] [p]etitioner or others relative to [his] [m]otion to [s]uppress [evidence] dated June 28, 2000." The petitioner also alleged that O'Brien improperly "failed to properly object to hearsay evidence...." The respondent, the commissioner of correction, denied that the petitioner's confinement was illegal and, with regard to the petitioner's specific claims of ineffective assistance, left the petitioner to his proof.

Following a hearing, during which the court received evidence including testimony from the petitioner and O'Brien, the court issued a memorandum of decision denying the petition. The court subsequently granted the petition for certification to appeal; see General Statutes § 52-470(b); and this appeal followed.

Before turning to the two claims raised in this appeal, we first set forth the applicable principles of law and the legal standard that govern our review. "In all criminal prosecutions, the accused shall ... have the assistance of counsel for his defense." U.S. Const., amend. VI. "It has long been recognized that the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

"In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient.... Second, the [petitioner] must show that the deficient performance prejudiced the defense.... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversarial process that renders the result unreliable....

"The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness.... In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.... 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.... [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Bowens v. Commissioner of Correction, 104 Conn.App. 738, 741-42, 936 A.2d 653 (2007), cert. denied, 286 Conn. 905, 944 A.2d 978 (2008).

"Turning to the prejudice component of the Strickland test, "[i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding.... Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.... When a [petitioner] challenges a conviction, the...