Coccomo v. Comm'r of Corr.

• Citation: 203 Conn.App. 704,252 A.3d 383
• Decision Date: 06 April 2021
• Docket Number: AC 42933
• Court: Appellate Court of Connecticut
• Parties: Tricia COCCOMO v. COMMISSIONER OF CORRECTION

203 Conn.App. 704

252 A.3d 383

Tricia COCCOMO

v.COMMISSIONER OF CORRECTION

AC 42933

Appellate Court of Connecticut.

Argued October 21, 2020

Officially released April 6, 2021

Damian K. Gunningsmith, assigned counsel, with whom was Drew Cunningham, assigned counsel, for the appellant (petitioner).

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., chief state's attorney, and Joseph C. Valdes and Brenda L. Hans, senior assistant state's attorneys, for the appellee (respondent).

Alvord, Prescott and Moll, Js.

PRESCOTT, J.

This habeas corpus action arises out of the conviction of the petitioner, Tricia Coccomo, of multiple offenses related to a drunken driving accident in which she caused the death of three individuals. She appeals from the judgment of the habeas court denying her petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly concluded that her trial counsel had not rendered constitutionally ineffective assistance in the manner in which he responded to evidence of the petitioner's (1) blood alcohol content and (2) consciousness of guilt. We affirm the judgment of the habeas court.

The following facts, as set forth by our Supreme Court on the petitioner's direct appeal, are relevant to the claims on appeal. "On the evening of July 26, 2005, the [petitioner] attended a dinner party hosted by Louise Orgera at her home on Dannell Drive in the city of Stamford. Orgera had prepared two pitchers of sangria, each containing a ‘double bottle’ of wine, to which the party guests helped themselves. Between the time that the [petitioner] arrived at the party shortly after 7 p.m. and the time that she left at approximately 9 p.m., she consumed approximately one and three quarters cups of sangria.

"After leaving the party, the [petitioner] was driving northbound on Long Ridge Road at approximately 9:30 p.m. when her vehicle crossed the center line and collided with a southbound vehicle occupied by James Inverno, Barbara Inverno and Glenn Shelley. The estimated combined speed of the impact was ninety miles per hour, and both vehicles sustained severe damage. All three occupants in the other vehicle died as a result of the injuries that they incurred in the collision. The [petitioner] suffered broken bones in her left foot and lacerations, and was transported to Stamford Hospital (hospital), where a blood test revealed that she had a blood alcohol content of 241 milligrams per deciliter or 0.241 percent. It was estimated that the [petitioner's] blood alcohol content at the time of the collision was approximately 250 milligrams per deciliter or 0.25 percent." State v. Coccomo , 302 Conn. 664, 666–67, 31 A.3d 1012 (2011).

The petitioner was charged with numerous offenses and was convicted, following a jury trial, of three counts of manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b (a), three counts of misconduct with a motor vehicle in violation of General Statutes § 53a-57 (a), and one count of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (2). Id., at 667, 31 A.3d 1012.¹ On direct appeal, this court declined to review the petitioner's unpreserved claim that the trial court improperly had admitted evidence of her blood alcohol content in light of a discrepancy in the evidence regarding the color of the test tube cap on the vial containing a sample of her blood. State v. Coccomo , 115 Conn. App. 384, 394, 396, 972 A.2d 757 (2009). This court reversed the petitioner's conviction, however, concluding that the trial court improperly had admitted consciousness of guilt evidence. Id., at 386, 972 A.2d 757. Following the granting of the state's petition for certification to appeal, our Supreme Court reversed the decision of this court and affirmed the petitioner's conviction. State v. Coccomo , supra, 302 Conn. at 666, 31 A.3d 1012.

On September 26, 2016, the petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of her trial counsel, Michael Sherman. Count one of the petition alleged various ways in which Sherman was ineffective in responding to the evidence of the petitioner's blood alcohol content. Count two of the petition alleged various ways that Sherman was ineffective in response to consciousness of guilt evidence offered by the state that, shortly after the accident, the petitioner had executed a quitclaim deed transferring her interest in her home to her mother.

Following a habeas trial on July 5 and 6, 2018, the habeas court, Newson, J ., issued a memorandum of decision denying the petition. The habeas court thereafter granted the petitioner certification to appeal to this court. The petitioner then filed the present appeal, claiming that the habeas court improperly concluded that Sherman had not rendered ineffective assistance of counsel with regard to both evidence of her blood alcohol content and her consciousness of guilt evidence. Additional facts will be set forth as necessary.

Before addressing the petitioner's specific claims on appeal, we first set forth the applicable law governing a claim of ineffective assistance of counsel and our appellate standard of review. "It is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings .... This right arises under the sixth and fourteenth amendments to the United States [c]onstitution and article first, § 8, of the Connecticut constitution. ... As enunciated in Strickland v. Washington , [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel. ... A claim of ineffective assistance of counsel consists of two components: [A] performance prong and a prejudice prong. To satisfy the performance prong ... 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 second prong of Strickland , that his counsel's deficient performance prejudiced his defense, the petitioner must establish that, as a result of his trial counsel's deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. ... The second prong is thus satisfied if the petitioner can demonstrate that there is a reasonable probability that, but for [his counsel's] ineffectiveness, the outcome would have been different. ... An ineffective assistance of counsel claim will succeed only if both prongs [of Strickland ] are satisfied. ... The court, however, may decide against a petitioner on either prong, whichever is easier." (Internal quotation marks omitted.) Francis v. Commissioner of Correction , 182 Conn. App. 647, 651–52, 190 A.3d 985, cert. denied, 330 Conn. 903, 191 A.3d 1002 (2018).

"The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed [on appeal] unless they are clearly erroneous. ... Thus, the [habeas] court's factual findings are entitled to great weight. ... Furthermore, a finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... 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." (Citation omitted; internal quotation marks omitted.) Rogers v. Commissioner of Correction , 194 Conn. App. 339, 346–47, 221 A.3d 81 (2019).

I

The petitioner asserts two related claims regarding the blood alcohol content evidence admitted at trial. First, she claims that the habeas court improperly concluded that she failed to demonstrate that she was prejudiced by Sherman's failure to object, on chain of custody grounds, to evidence of her blood alcohol content following testimony from a hospital employee regarding a discrepancy between the color of the test tube used to draw the petitioner's blood and the color of the test tube listed in the hospital's computer records.² The petitioner further claims that the habeas court improperly concluded that she failed to demonstrate that Sherman engaged in deficient performance by failing to argue the chain of custody issue in closing argument, and that, even if his performance was deficient, the petitioner suffered no prejudice. We disagree with both of the petitioner's assertions.

The following testimony, as summarized by our Supreme Court on direct appeal, was elicited at trial and is relevant to the disposition of the petitioner's claim. "[Paramedic Kirsten] Engstrand testified that she drew five tubes of the [petitioner's] blood, each with a different colored cap, namely, gold, green, pink, purple and blue, placed the tubes in a biohazard bag, rolled the bag up, and taped it to the [petitioner's] intravenous fluid bag, all before the ambulance arrived at the hospital. Although Engstrand did not label the blood tubes or the biohazard bag, she stated that, upon arriving at the hospital, she placed the intravenous fluid bag and the biohazard bag containing the tubes on or between the [petitioner's] legs. She then turned the [petitioner's] care over to [Toren] Utke, the [hospital] nurse who met Engstrand and the [petitioner] when the ambulance arrived at the hospital.

"Utke testified that Engstrand identified the biohazard bag as belonging to the [petitioner] and that he left the bag with the [petitioner] while he went to obtain the printed labels produced for...