Crocker v. Commissioner of Correction

• Citation: 101 Conn.App. 133,921 A.2d 128
• Decision Date: 08 May 2007
• Docket Number: No. 26603.,26603.
• Court: Appellate Court of Connecticut
• Parties: Shawn CROCKER v. COMMISSIONER OF CORRECTION.

921 A.2d 128

101 Conn.App. 133

Shawn CROCKER v. COMMISSIONER OF CORRECTION.

No. 26603.

Appellate Court of Connecticut.

Argued October 20, 2006.

Decided May 8, 2007.

Joseph A. Jaumann, special public defender, for the appellant (petitioner).

Toni M. Smith-Rosario, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Linda N. Howe, senior assistant state's attorney, for the appellee (respondent).

SCHALLER, ROGERS and LAVINE, Js.

ROGERS, J.

The petitioner, Shawn Crocker, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that his trial counsel did not render ineffective assistance regarding (1) his failure to object to the admission into evidence of the transcript testimony of a witness from the petitioner's first criminal trial and (2) adequately investigating his case prior to his second trial. We affirm the judgment of the habeas court.

The relevant facts and procedural history are set forth in our decision affirming the petitioner's conviction on direct appeal. State v. Crocker, 83 Conn.App. 615, 852 A.2d 762, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004). "Shortly before 7:30 p.m. on October 27, 1997, George David Wright drove a stolen Jeep Cherokee to the Quinnipiac Terrace housing complex in New Haven, also known as `the Island.' The victim, Daryl Price, was in the passenger seat of the Jeep, and Calvin Taylor was seated in the back. At the housing complex, Wright and Taylor exited the vehicle, and Tacuma Grear approached the Jeep to talk to the victim. They talked about the [fatal shooting] of Grear's brother, Corey Grear [by the victim], which had occurred approximately one week earlier, for which the victim . . . apologized. Corey Grear was a friend of the [petitioner], and the [petitioner] had held [Corey Grear] in his arms after Grear was fatally shot by the victim. The [petitioner] had witnessed the victim shoot Corey Grear. Corey Grear was also a member, as was the [petitioner], of the Island Brothers, a street gang into which the victim had been introduced and sponsored by the [petitioner]. As his sponsor, the [petitioner] was responsible for disciplining the victim should the victim kill a fellow gang member. As Tacuma Grear walked away from the Jeep, the [petitioner] had come up to the driver's side of the Jeep carrying a handgun. He then leaned into the Jeep and fired four times into the vehicle. Two .45 caliber bullets hit the victim, killing him, and two other bullets were found in the Jeep." Id., at 619, 852 A.2d 762. After a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a and criminal possession of a firearm in violation of General Statutes § 53a-217.

Following his unsuccessful appeal, the petitioner filed an amended petition for a writ of habeas corpus, alleging, inter alia, ineffective assistance of his trial counsel, Leo Ahern, who had represented the petitioner throughout his first criminal trial, which resulted in a mistrial, and then again in his second trial. The habeas court rejected the petitioner's claims of ineffective assistance of counsel but later granted the petition for certification to appeal. Additional facts will be set forth as necessary.

"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. . . .

"In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) 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 adversary process that renders the result unreliable." (Citation omitted; internal quotation marks omitted.) Floyd v. Commissioner of Correction, 99 Conn. App. 526, 529-30, 914 A.2d 1049 (2007).

"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.) Santiago v. Commissioner of Correction, 90 Conn.App. 420, 425, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom. Santiago v. Lantz, ___ U.S. ___, 126 S.Ct. 1472, 164 L.Ed.2d 254 (2006).

"The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some 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 question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Citation omitted; internal quotation marks omitted.) Porter v. Commissioner of Correction, 99 Conn.App. 77, 83, 912 A.2d 533, cert. granted on other grounds, 281 Conn. 922, 918 A.2d 272 (2007).

"Because both prongs [of Strickland] must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong. . . . Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim." (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11-12, 916 A.2d 864 (2007).

I

The petitioner first claims that his trial counsel provided ineffective representation for failing to object to the admission into evidence of the testimony of Travis Jenkins from the petitioner's first trial and by subsequently objecting to the state's motion to open its case to allow Jenkins to testify. Specifically, the petitioner contends that Ahern's failure to object to the admission of the Jenkins transcript was constitutionally deficient and prejudiced him because the testimony in the transcript contained a prior inconsistent statement by Jenkins, which the petitioner argues was inadmissible under State v. Williams, 231 Conn. 235, 645 A.2d 999 (1994), overruled on other grounds by State v. Murray, 254 Conn. 472, 499, 757 A.2d 578 (2000) (en banc),¹ because Jenkins did not testify at the second trial and was not subject to cross-examination. We disagree.

The following additional facts are relevant to our resolution of the petitioner's claim. During the petitioner's second trial, the state presented evidence that it had been unable to procure the attendance of Jenkins, for whom the court previously had issued a capias. The court made a finding that the state had established, pursuant to § 8-6 of the Connecticut Code of Evidence and the common law, that Jenkins was unavailable to testify. The court then admitted into evidence Jenkins' testimony from the petitioner's first trial and permitted Ahern to preserve any objections he may have had as to the content of the testimony. After a recess in order to permit Ahern to review the transcript, the court asked him if he had any comments on the substance of the transcript, and he responded that he did not. After the state rested, and while the petitioner was presenting his case, the state informed the court that Jenkins was present. Ahern objected to the state's opening its case and calling Jenkins to testify, and the court sustained the objection. State v. Crocker, supra, 83 Conn.App. at 653, 852 A.2d 762.

At the habeas trial, Ahern testified that he was concerned that Jenkins might show up to testify and when he did, Ahern did not want Jenkins to testify. He believed that Jenkins had been somewhat cooperative when he testified at the first trial and did not want to risk Jenkins giving potentially more damaging live testimony. He also was skeptical about the state's failure to locate Jenkins and wondered whether the state had tried to get him to say things that perhaps he did not say at the first trial.

We conclude that the petitioner has failed to demonstrate that...