Elsey v. Comm'r of Correction

• Decision Date: 18 January 2011
• Docket Number: No. 31132.,31132.
• Citation: 126 Conn.App. 144,10 A.3d 578
• Court: Connecticut Court of Appeals
• Parties: Terance ELSEY v. COMMISSIONER OF CORRECTION.

10 A.3d 578

126 Conn.App. 144

Terance ELSEY

v.COMMISSIONER OF CORRECTION.

No. 31132.

Appellate Court of Connecticut.

Argued Sept. 24, 2010.

Decided Jan. 18, 2011.

Jodi Zils Gagne, special public defender, for the appellant (petitioner).

Tamara A. Grosso, special deputy assistant state's attorney, with whom were Michael J. Proto, assistant state's attorney,and, on the brief, Scott J. Murphy, state's attorney, for the appellee (respondent).

HARPER, ROBINSON and ALVORD, Js.

HARPER, J.

The petitioner, Terance Elsey, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court improperly concluded (1) that he failed to prove that the state suppressed exculpatory evidence at his criminal trial in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and (2) that he failed to prove ineffective assistance of his trial counsel. We affirm the judgment of the habeas court.

The decision of this court in the petitioner's direct appeal sets forth the following facts underlying the petitioner's conviction. "On January 12, 2000, three people were residing in a house in New Britain. At about 12:30 a.m., the occupants heard numerous gunshots. Several bullets entered the house through the windows and the walls. Some of the bullets entered a living room, where one of the victims, a young man, was watching television. The young man dove to the floor and told the other victims to call the police. One of the other victims called the New Britain police.

"The sound of the gunshots alarmed other people in the neighborhood and caused them to look out the windows in their homes. A woman living next door to the victims' house looked out her window and observed a small fire burning on the side of the victims' house. The fire, located at the ground level, was approximately five feet wide and one foot tall. It died out on its own within a few minutes but caused minor damage to the house. In addition to surprising the woman, the gunshots startled two men in the house across the streetfrom the victims' house. The two men saw two or three unidentified men near the victims' house and called the police. The men in the house then observed the unidentified men run to a black Pontiac Grand Am car. Both of the men in the house noted that the unidentified man who got into the backseat of the car was wearing a flannel shirt with a white pattern. The car left the scene, and the men in the house were unable to determine if there was a license plate on the car.

"Minutes after the gunfire, a Newington police officer saw a black Pontiac Grand Am car without a rear license plate heading northbound on the Berlin Turnpike. The officer stopped the car and noticed that there were three men inside. The man in the rear seat was wearing eyeglasses and a white or light colored shirt. The officer was aware, via a Newington police broadcast, of the earlier shooting in New Britain. The officer spoke to the driver of the car, who claimed that he had no identification. He was able to provide only the rental agreement for the car. The driver explained that he had just come from the New Britain area. The officer suspected that the men in the car were associated with the shootings and fire, but before the officer could conduct further investigation, the car sped off. The officer gave chase but was unable to catch up to the car. Two other police cruisers and one state police trooper joined the chase.

"The chase, which continued with the police vehicles reaching speeds of 100 miles per hour, ended abruptly when the Pontiac smashed into a concrete wall after turning off an exit in Hartford. The state police trooper was the first to reach the scene and witnessed two men, who had been sitting in the front seats, running away. The man in the backseat, wearing a light colored shirt, left the car and, ignoringthe trooper's commands, ran from the scene of the accident. Other local police and state police trooper units arrived on the scene, but despite the presence of a K-9 unit, were unable to locatethe three men. The police brought to the accident scene the two men who had witnessed the events at the victims' house. Both men stated that the car at the scene of the accident was the same black Pontiac Grand Am that the unidentified men had entered outside the victims' house.

"The police then turned their attention to the car. They learned that Robert Lane had rented the car. Robert Lane is the father of Ahmad Lane, a friend of Ronald Hughes, the [petitioner's] cousin. Inside the car, the police found a pair of wire rimmed eyeglasses, a cell phone registered to the [petitioner] and another cell phone registered to Hughes. The police also discovered latent fingerprints on the car. The latent fingerprints matched the [petitioner's] known fingerprints for his thumb, and index and middle fingers. In addition, the gasoline cap of the car was missing.

"Further investigation of the cell phones revealed that there were at least eight calls made between the [petitioner's] cell phone and Hughes' cell phone between 9:30 and 10:30 p.m. earlier that evening. In addition, there was a call from the [petitioner's] cell phone to a female friend of the [petitioner] at 11:55 p.m., approximately thirty-five minutes before the crimes at issue. The [petitioner's] cell phone account was active, but it was deactivated the day after the incident.

"The police also investigated the scene at the victims' house. Near the scene of the fire, the police found a cigarette lighter and a champagne bottle with a burned label and gasoline inside. The police also found five nine millimeter shells, all from the same gun, and a .22 caliber bullet. Inside the victims' house, the police recovered three nine millimeter bullets and two .38 caliber bullets. There were eight bullet holes in the house, which, along with the presence of the two different caliber bullets, led the police to believe that at least two different guns were involved in the shooting.

"Twelve days after the shooting, the police searched the [petitioner's] house. The police recovered various paraphernalia related to the [petitioner's] cell phone that was found in the car, a new cell phone, an unfired .22 caliber round, a photograph of the [petitioner] wearing wire rimmed eyeglasses, an empty eyeglass case that fit the recovered eyeglasses, a pair of contact lenses and a blank application for a pistol permit. Notably, there was not another pair of eyeglasses in the [petitioner's] apartment. The .22 caliber round was the same as the one recovered at the scene of the crimes. A master optician compared the wire rim eyeglasses recovered at the scene of the car crash with the [petitioner's] contact lenses. The master optician testified that '[t]hese particular eyeglass lenses [that were found in the car] do match these contact lenses [that were found in the petitioner's apartment]. So, these eyeglasses would work for whoever wears these contact lenses.' When asked, 'Did anyone other than the person wearing these contact lenses wear these glasses?' the master optician replied, 'That would be unlikely because it's a very strong prescription and because they match at that certain level of strength.' " State v. Elsey, 81 Conn.App. 738, 740-43, 841 A.2d 714, cert. denied, 269 Conn. 901, 852 A.2d 733 (2004).

At the petitioner's trial, Wayne Stephens, the son of one of the victims, testified that he had lent his car to a friend who had used the car to rob Hughes, the petitioner's cousin. Seeid., at 743, 841 A.2d 714. Stephens testified that the next day, the petitioner's brother told him, "I can't get you, so I know where your mom lives [at] and I'm going there tonight." (Internal quotation marks omitted.) Id.

The petitioner was convicted of "arson in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-111(a)(1), conspiracy to commit arson in the first degree in violation ofGeneral Statutes §§ 53a-48 and 53a-111 (a)(1), two counts of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a)(1) and (4), two counts of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a)(1) and (4), and three counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63." Id., at 739, 841 A.2d 714. The petitioner was sentenced to a total effective term of thirty years imprisonment, suspended after fifteen years, with five years of probation. On direct appeal, this court affirmed the petitioner's convictions, but held that the petitioner's separate sentences for the three conspiracy counts violated the petitioner's right to be free of double jeopardy. Id., at 752, 841 A.2d 714. This court ordered that the three conspiracy counts be combined and two of the sentences vacated. Id. The petitioner's subsequent petition for certification to appeal to our Supreme Court was denied. State v. Elsey, 269 Conn. 901, 852 A.2d 733 (2004).

The petitioner filed his original petition for habeas corpus on February 7, 2005, and subsequently filed the operative third amended petition for habeas corpus on September 2, 2008. Although the petitioner presented a multitude of grounds in support of his petition, we need only address those grounds that are relevant to this appeal. First, the petitioner claimed that the state violated his right to due process by failing to disclose the fact that Stephens had received a sentence modification shortly before testifying for the state. Additionally, the petitioner alleged that his trial counsel provided ineffective assistance for several reasons relating to his investigation and examination of Stephens as well as for the manner with which he responded to the state's presentation of evidence relating to a gun and a bullet. After conducting a hearing, the habeas court found that the petitioner's...