Figueroa v. Commissioner of Correction, 010521 CTCA, AC 42140

Docket Nº:AC 42140
Opinion Judge:DiPENTIMA, J.
Party Name:GEORGE FIGUEROA v. COMMISSIONER OF CORRECTION
Attorney:Michael W. Brown, for the appellant (petitioner). Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Rebecca A. Barry, supervisory assistant state's attorney, for the appellee (respondent).
Judge Panel:Alvord, Prescott and DiPentima, Js.
Case Date:January 05, 2021
Court:Appellate Court of Connecticut

GEORGE FIGUEROA

v.

COMMISSIONER OF CORRECTION

No. AC 42140

Court of Appeals of Connecticut

January 5, 2021

Argued September 16, 2020

Procedural History

Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Kwak, J.; judgment denying in part and dismissing in part the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

Michael W. Brown, for the appellant (petitioner).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Rebecca A. Barry, supervisory assistant state's attorney, for the appellee (respondent).

Alvord, Prescott and DiPentima, Js.

OPINION

DiPENTIMA, J.

The petitioner, George Figueroa, appeals from the judgment of the habeas court denying in part and dismissing in part his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court erred by concluding that (1) he failed to sustain his burden of establishing prejudice caused by his trial counsel's failure to request an alibi instruction, (2) he failed to sustain his burden of establishing prejudice caused by his appellate counsel's failure to argue on direct appeal that his constitutional right to a trial by jury was violated, and (3) his claim that his constitutional right to a trial by jury was violated was procedurally defaulted. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner's claims. The petitioner was charged with murder in violation of General Statutes § 53a-54a (a) and carrying a pistol without a permit in violation of General Statutes § 29-35. The matter proceeded to trial, and the jury returned a verdict of guilty on both counts. The trial court, Hartmere, J., accepted the verdict and imposed a total effective sentence of sixty years imprisonment. The petitioner thereafter appealed from the judgment of conviction

On appeal, we affirmed the petitioner's conviction. See State v. Figueroa, 74 Conn.App. 165, 810 A.2d 319 (2002), cert. denied, 262 Conn. 947, 815 A.2d 677 (2003). The following facts, which the jury reasonably could have found, were set forth in our opinion in that appeal. In the summer of 1995, the petitioner and the victim, John Corbett, were involved in a physical altercation on Lilac Street in New Haven. Id., 166. During that altercation, the victim hit the petitioner in the face. Thereafter, the petitioner retreated to his residence on Lilac Street, retrieved his gun, and, from a window of his third floor apartment, began firing at the victim. Id., 166-67. The victim was not injured during this incident, which was never reported to the police. Id., 167.

Shortly thereafter, the victim was incarcerated until sometime in November, 1997. Id. Approximately two weeks after his release, on the afternoon of December 7, 1997, the victim was standing at the corner of Lilac and Newhall Streets, speaking with Edward Wells. Id. The two men were standing in front of 44-46 Lilac Street when the petitioner approached, driving his white 1997 Toyota Camry, which he parked in front of a red sports car that also was parked along the side of Lilac Street. Id. The petitioner got out of his car and entered 40-42 Lilac Street. Id.

In the meantime, Ebonie Moore approached, driving her black car, which she parked along Lilac Street behind the red sports car. Id. She and her passenger, Takheema Williams, who had dated the petitioner, were sitting in Moore's car listening to music. Id.

The petitioner then emerged from the 40-42 Lilac Street residence and stood near his car. Id. The victim told Wells that he wanted to speak with the petitioner, and he walked over to where the petitioner was standing. Id. ‘‘The two talked for a short time, they shook hands, and then a shot was fired. As [the victim] turned away from the [petitioner], he fell face down onto the sidewalk. Wells and Moore then watched as the [petitioner] stood over [the victim], with his arm fully extended and a pistol in his hand, and fired several additional shots into [the victim's] body. The [petitioner] then walked to his white Toyota Camry, which was parked a few feet away, got into the driver's seat and sped along Lilac Street toward Newhall Street.'' Id., 167-68.

Wells ran to Moore's parked car, banged on the window, and yelled for Moore to call for an ambulance because ‘‘ ‘[the petitioner] had just shot [the victim].' '' Id., 168. Moore and Wells administered cardiopulmonary resuscitation (CPR) to the victim until the police arrived. Id. ‘‘Shortly thereafter, an ambulance arrived and transported [the victim] to Yale-New Haven Hospital where he was pronounced dead about eight minutes after his arrival. [The victim] suffered six gunshot wounds. He was shot once in the stomach, four times in the lower back and once in the back of his left shoulder. Either or both of two of the wounds to [the victim's] lower back were fatal.'' Id.

‘‘Soon thereafter, Wells and Moore arrived at the hospital where they told a New Haven police detective that it was the [petitioner] who had shot [the victim]. Within the next few days, both Wells and Moore gave statements to the police implicating the [petitioner] as the shooter and selected the [petitioner's] photograph from a photographic array, identifying him as the man who shot [the victim]. On December 10, 1997, Williams gave the police a tape-recorded statement regarding the December 7, 1997 shooting on Lilac Street.'' Id. Thereafter, the matter proceeded to trial, and the petitioner was convicted.

Following his direct appeal, the petitioner filed a pro se petition for a writ of habeas corpus on August 14, 2006. The habeas court, Swords, J., granted the motion to dismiss filed by the respondent, the Commissioner of Correction, and this court affirmed the habeas court's judgment and dismissed the petitioner's appeal. See Figueroa v. Commissioner of Correction, 123 Conn.App. 862, 871, 3 A.3d 202 (2010), cert. denied, 299 Conn. 926, 12 A.3d 570 (2011). Thereafter, the petitioner filed a second petition for a writ of habeas corpus, which is the subject of this appeal. In the operative petition dated August 14, 2017, the petitioner alleged ineffective assistance of trial and appellate counsel. He also alleged that his constitutional rights to a trial by jury and due process of law had been violated. The habeas court, Kwak, J., denied in part and dismissed in part the petition. The court determined that the petitioner had failed to prove that he was prejudiced by any of the alleged errors. The petitioner filed a petition for certification to appeal, which the court granted. Additional facts will be set forth as necessary.

I

The petitioner claims that the habeas court erred in concluding that he was not prejudiced by his trial counsel's failure to request an alibi instruction. Specifically, the petitioner argues that there is a reasonable probability that the outcome of his trial would have been different if the jury had been instructed as to how it should assess the alibi evidence presented at his trial. The petitioner contends that the jury, without proper guidance, could have believed that he had the burden of proving his alibi. In response, the respondent argues that an alibi instruction would not have led the jurors to question the credibility of Wells and Moore due to the strong evidence of the petitioner's identity as the shooter and the weakness of the petitioner's alibi evidence. Moreover, the respondent contends that the petitioner was not prejudiced because the jurors had the capacity to assess alibi evidence adequately without the aid of a specific alibi instruction by relying on their common knowledge. We agree with the respondent that the court properly concluded that the petitioner was not prejudiced by any alleged ineffectiveness of his trial counsel.

The following additional facts and procedural history are relevant. At trial, both Wells and Moore testified that they saw the petitioner shoot the victim. Wells testified that he heard a shot, saw the victim fall to the ground, and then watched as the petitioner stood over the victim and continued to fire at him. He further stated that he had a good look at the petitioner, it was not dark out, he had an unobstructed view, and there was no question in his mind that the petitioner was the individual firing at the victim. Wells also testified that, after the petitioner drove off in his car, Wells banged on the window of Moore's car and asked her to call an ambulance because the petitioner had just shot the victim. Wells told the police officers at the scene that the petitioner had shot the victim, and repeated this to the detectives who took his statement at the police station later that evening. While at the station, the police showed Wells approximately six or seven photographs, and asked him to identify the petitioner. Wells identified the petitioner from the photographs.

Following Wells' testimony, Moore testified that she also saw the petitioner shoot the victim. Specifically, she testified that she saw the petitioner talking with the victim, saw the victim turn away and begin to walk toward her car, and then watched as the petitioner began to fire at the victim. Moore testified that the victim fell over and the petitioner stood over him and continued to fire. After he stopped firing at the victim, the petitioner got into his car and drove off. Moore testified that Wells then came up to her car and yelled that ‘‘[the petitioner] just shot [the victim].'' Moore and Wells performed CPR on the victim. Moore went to Yale-New Haven Hospital...

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