Dupigney v. Comm'r of Corr.

• Decision Date: 31 July 2018
• Docket Number: AC 39519
• Citation: 193 A.3d 1274,183 Conn.App. 852
• Court: Connecticut Court of Appeals
• Parties: Johnny DUPIGNEY v. COMMISSIONER OF CORRECTION

183 Conn.App. 852

193 A.3d 1274

Johnny DUPIGNEY

v.COMMISSIONER OF CORRECTION

AC 39519

Appellate Court of Connecticut.

Argued May 24, 2018

Officially released July 31, 2018

Megan L. Wade, assigned counsel, with whom were Emily Graner Sexton, assigned counsel, and, on the brief, James P. Sexton, Hartford, assigned counsel, for the appellant (petitioner).

Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Patrick Griffin, state's attorney, and Rebecca Barry, assistant state's attorney, for the appellee (respondent).

DiPentima, C.J., and Elgo and Pellegrino, Js.

ELGO, J.

The petitioner, Johnny Dupigney, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. In this certified appeal, the petitioner claims that the habeas court improperly rejected his claim of ineffective assistance of counsel. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner's appeal. "Morris Lewis, the victim, and Herbert Dupigney, the [petitioner's] brother, were partners in an illegal drug selling enterprise in New Haven. The drug sales were conducted primarily at 304 Winthrop Avenue. Other members of the operation included Nick Padmore, an individual known to the [witnesses] in the trial only as ‘Ebony’ and Eric Raven. In December, 1994, following the victim's incarceration, the [petitioner] moved from Boston to New Haven to assist his brother in the drug operation. The [petitioner] also enlisted an acquaintance from Boston, Derrick D'Abreau, to help with the drug sales. D'Abreau moved to New Haven in the beginning of January, 1995.

"The victim was released from jail on January 23, 1995. That day, the victim telephoned Herbert Dupigney at the home of Carlotta [Grinnan]. [Grinnan] overheard the [petitioner] tell his brother that the victim ‘was not going to get a ... thing.’

"On January 24, 1995, at about 9:30 p.m., the victim met with the [petitioner], the [petitioner's] brother, Herbert Dupigney, D'Abreau, Padmore, Raven and ‘Ebony’ at 304 Winthrop Avenue. Upon his arrival at the building, the victim told everybody to leave because that was his location to sell drugs. As the argument escalated, the victim slapped the [petitioner] and threw a chair at him. The victim then broke a bottle and attempted to attack the [petitioner]. D'Abreau and Raven retreated to a turquoise Dodge Neon. The victim then started swiping the bottle at the occupants of the vehicle through one of its open windows. While Herbert Dupigney attempted to calm the victim and get him away from the car, the [petitioner] inquired if anybody had a gun. In response, D'Abreau gave the [petitioner] a .380 caliber pistol. The [petitioner] then pointed the gun at the victim and told him to back off.

"Herbert Dupigney and the [petitioner] then entered the turquoise Dodge Neon and left the scene. The group proceeded to [Raven's] apartment at 202 Sherman Avenue. The [petitioner] was visibly upset, and stated that the victim was getting on his nerves and that he was going to kill him. After a few minutes, the [petitioner] and his brother left.

"The [petitioner] and his brother rejoined [Raven] and D'Abreau at 202 Sherman Avenue approximately one hour later. Between 11:15 p.m. and 11:30 p.m., all four individuals proceeded to 300 Winthrop Avenue, where the drug operation had rented a fourth floor room facing Winthrop Avenue. At that time, the victim was playing dice with Padmore and ‘Ebony’ in front of 304 Winthrop Avenue. Herbert Dupigney went down to the street to try to smooth things over with the victim. It was understood that if the attempt at reconciliation was unsuccessful, then the victim would be shot. The [petitioner], [Raven] and D'Abreau observed the scene from the apartment's window. After a few minutes of conversation between the parties and with no overt indication that an accord had been reached, the victim, Padmore and ‘Ebony’ walked off in the direction of Edgewood Avenue. Herbert Dupigney called out to ‘Ebony.’ After ‘Ebony’ started to return, the [petitioner] and [Raven] abruptly left the apartment.

"As the victim and Padmore approached the corner of Winthrop Avenue and Edgewood Avenue, the turquoise Dodge Neon approached them. The [petitioner] exited the vehicle and fired several shots at the victim. A brief struggle ensued, after which the [petitioner] fired more shots at the victim. The victim died of his wounds

shortly thereafter." State v. Dupigney , 78 Conn. App. 111, 112–14, 826 A.2d 241, cert. denied, 266 Conn. 919, 837 A.2d 801 (2003).

At the petitioner's criminal trial, the state presented the testimony of three eyewitnesses: D'Abreau, Aisha Wilson, and Padmore. "D'Abreau testified that he was an eyewitness to the murder. He observed the shooting from the fourth floor windows of the apartment building at 300 Winthrop [Avenue] and was able to identify the [petitioner] as the assailant on the basis of the clothing that the [petitioner] was wearing at the time of the murder. In addition to his personal observation, D'Abreau testified that the dispute over drug dealing had been discussed previously and that if the disagreements could not be resolved, the [petitioner] was going to shoot the victim." Id., at 121, 826 A.2d 241.

In her testimony, "Wilson identified the [petitioner] as the one who had argued with and later shot the victim. On direct examination, Wilson testified that at approximately 9:30 on the evening of January 24, 1995, she witnessed the victim and three other people engaged in an argument outside her building. Wilson was able to identify two of these people as Herbert Dupigney and an individual known to her only as ‘Ebony.’ ... Her aunt told her that the third individual was Herbert Dupigney's brother.

"The victim was yelling at the [petitioner], ‘Just shoot me, just shoot me.’ As the argument progressed, the victim broke a bottle and kicked over a chair. The victim then went after the [petitioner] with the broken bottle. Thereafter, the [petitioner] and his brother entered a turquoise colored car, while ‘Ebony’ remained behind trying to calm the victim.

"Later that same evening, at approximately 11:15 p.m., Wilson heard someone outside her apartment yelling, ‘Help, help. Fire, fire.’ When she looked out of the window, she saw the victim bleeding and walking in the middle of the street. That same turquoise colored car in which the [petitioner] and his brother previously had departed then returned. The individual that had been identified as Herbert Dupigney's brother, and whom she identified as the [petitioner], exited the car and shot the victim." Id., at 115–16, 826 A.2d 241.

"Padmore contacted the New Haven police shortly after the murder, claiming to have information regarding the crime. The police interviewed him on February 1, 1995. At that time, he provided the police with a taped statement identifying the [petitioner] as the assailant. He also identified the [petitioner] as the shooter from a photographic array and signed the [petitioner's] photograph. Both the taped statement and the photograph were admitted into evidence under State v. Whelan , 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed. 2d 598 (1986)." (Footnote omitted.) Id., at 120–21, 826 A.2d 241.

"The [petitioner] was charged with one count of murder in violation of [General Statutes] § 53a-54a, one count of carrying a pistol without a permit in violation of [General Statutes] § 29-35 and one count of criminal possession of a pistol or revolver in violation of [General Statutes] § 53a-217c.... All of the counts were tried concurrently.¹ On March 31, 2000, the [petitioner] was found guilty on all three counts and later was sentenced to a total effective sentence of seventy years incarceration." (Footnote added.) Id., at 114–15, 826 A.2d 241. The petitioner's conviction was affirmed on direct appeal. Id., at 125, 826 A.2d 241.

Following two unsuccessful actions that concerned DNA evidence; see State v. Dupigney , 309 Conn. 567, 586, 72 A.3d 1009 (2013) ; State v. Dupigney , 295 Conn. 50, 74, 988 A.2d 851 (2010) ; the petitioner commenced the present habeas action. His February 8, 2016 amended petition for a writ of habeas corpus contained eight counts alleging, in relevant part, ineffective assistance of trial counsel.

Following a trial, the habeas court denied the amended petition for a writ of habeas corpus. In its memorandum of decision, the court disposed of the ineffective assistance of trial counsel claim relevant to this appeal under the prejudice prong of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), concluding that the petitioner had "failed to prove, by a preponderance of the evidence, that there exists a reasonable likelihood that, but for the professional representation alleged, the outcome of the petitioner's criminal trial would have been different." The court subsequently granted the petition for certification to appeal, and this appeal followed.² In this appeal, the sole issue is whether the petitioner was denied his constitutional right to the effective assistance of trial counsel.³

As a preliminary matter, we set forth the standard of review and relevant principles of law that govern our analysis of the petitioner's appeal. "It is well established that [t]he habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous.... Historical facts constitute a recital of external events and the credibility of their narrators.... Accordingly, [t]he habeas [court], as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.... 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...