Darryl W. v. Comm'r of Corr.
Citation | 172 A.3d 853,177 Conn.App. 454 |
Decision Date | 24 October 2017 |
Docket Number | AC 38410 |
Court | Appellate Court of Connecticut |
Parties | DARRYL W. v. COMMISSIONER OF CORRECTION |
Craig A. Sullivan, assigned counsel, for the appellant (petitioner).
Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Marc Ramia, assistant state's attorney, for the appellee (respondent).
Prescott, Beach and Mihalakos, Js.
The petitioner, Darryl W.,1 appeals from the judgment of the habeas court denying his amended petition for writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly denied his amended petition because the record established that his criminal trial counsel had rendered ineffective assistance by (1) failing to file a request to charge the jury and/or to object to the trial court's jury instruction and (2) failing to direct the trial court in its response to the jury's inquiry on operability. We conclude that the habeas court properly determined that the petitioner failed to establish his claim of ineffective assistance of counsel in that he failed to establish that he was prejudiced by counsel's failure to file a request to charge the jury and/or to object to the jury instruction and that counsel performed deficiently by failing to direct the trial court in its response to the jury's inquiry.
Accordingly, we affirm the judgment of the habeas court.
The record discloses the following facts. In the underlying criminal matter of State v. Darryl W., the petitioner was charged with kidnapping in the first degree with a firearm in violation of General Statutes § 53a–92a, attempted aggravated sexual assault in the first degree in violation of General Statutes §§ 53a–49(a)(2) and 53a–70a(a)(1), and sexual assault in the third degree in violation of General Statutes § 53a–72a(a)(1)(B). After a trial by jury, he was found guilty of all three counts. In the petitioner's direct appeal, our Supreme Court affirmed the judgment.
In its opinion, our Supreme Court set forth the factual background as follows:
(Footnote omitted). State v. Darryl W., 303 Conn. 353, 357–59, 33 A.3d 239 (2012).
After his unsuccessful appeal, the petitioner brought this amended petition for writ of habeas corpus, claiming, inter alia, that his trial counsel, Mark Ouellette, was ineffective because he failed to file a request to charge the jury and/or to object to the trial court's jury instruction and because he failed to direct the court in its response to the jury's inquiry on operability.2 By its oral decision on August 4, 2015, the habeas court denied the amended petition. On August 17, 2015, the habeas court granted the petitioner's petition for certification to appeal from its judgment. This appeal followed. Additional facts will be set forth as necessary.
We first set forth our standard of review and the relevant law governing ineffective assistance of counsel claims. "The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous.... 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....
(Internal quotation marks omitted.)
Gaines v. Commissioner of Correction, 125 Conn.App. 97, 105, 7 A.3d 395 (2010), aff'd, 306 Conn. 664, 51 A.3d 948 (2012).
The petitioner first claims that trial counsel rendered ineffective assistance by failing to file a request to charge the jury on the operability of the firearm and/or failing to object to the trial court's jury instruction. Specifically, the petitioner argues that trial counsel should have requested a charge that the jury should not find the petitioner guilty of kidnapping in the first degree with a firearm if it finds that the pistol was, at the time of the crime, one from which a shot could not be discharged and that the petitioner did not have the means to make the pistol capable of discharging a shot. In addition, the petitioner argues that trial counsel should have requested a charge that the jury could not find the petitioner guilty of attempted aggravated sexual assault in the first degree unless it found sufficient evidence to prove, beyond a reasonable doubt, that the pistol was, at the time of the crime, one from which a shot could be discharged, or it found that the pistol was not one from which a shot could be discharged, but that the petitioner had under his control the means to make the pistol capable of discharging a shot.3 We are not persuaded.
The habeas court was presented with evidence of the following additional facts. At the close of evidence, but prior to the charging conference, the trial court provided a copy of its drafted jury charge to trial counsel and the prosecutor. The court asked counsel to be prepared to comment on the instructions and to discuss any concerns they may have. The following day, the court stated that it was willing to hear any requests that either counsel wanted to make regarding the charge. In response, trial counsel for the petitioner stated: "I have no changes as it was presented this morning." The court then noted that it had included in its charge the affirmative defense that the petitioner had requested.
On the charge of kidnapping in the first degree with a firearm, the court instructed the jury in relevant part: ...
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Darryl W. v. Comm'r of Corr.
...state's attorney, in opposition.The petitioner Darryl W.'s petition for certification to appeal from the Appellate Court, 177 Conn. App. 454, 172 A.3d 853 (2017), is ...