On May
1, 2000, the petitioner was convicted, after a jury trial, of
murder in violation of General Statutes § 53a-54a and
carrying a pistol without a permit in violation of General
Statutes § 29-35(a). The court, Hartmere, J., sentenced the
petitioner to a term of sixty years incarceration on June 16
2000. Attorney Chris DeMarco represented the petitioner at
his criminal trial.
The
petitioner appealed his conviction to the Appellate Court
which affirmed it. State v. Figueroa, 74 Conn.App
165, 810 A.2d 319 (2002). The Supreme Court denied the
petitioner’s petition for certification. State v
Figueroa, 262 Conn. 947, 815 A.2d 677 (2003). The
petitioner was represented by Attorney Richard Condon at his
direct appeal. The Appellate Court found that the jury could
reasonably have found the following facts:
In the summer of 1995, the defendant and the victim, John
Corbett, were involved in a physical altercation on Lilac
Street in New Haven. During that altercation, Corbett hit the
defendant in the face. Thereafter, the defendant retreated to
his then residence at 40-42 Lilac Street, retrieved his gun
and, from a window of his third floor apartment, began firing
at Corbett, who was standing in the street. Corbett was not
injured during that incident, which never was reported to the
police.
Shortly thereafter, Corbett was incarcerated. He was released
from prison sometime in November 1997. Approximately two
weeks later, on December 7, 1997, at about 2:30 p.m., Corbett
was standing at the corner of Lilac and Newhall Streets,
speaking with Edward Wells. After speaking with Wells for
about twenty minutes, Corbett left the area but returned a
short time later and resumed his conversation with Wells. The
two men were standing in front of 44-46 Lilac Street when the
defendant 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. The defendant got out
of his car and entered the house at 40-42 Lilac Street, where
his brother resided.
In the meantime, Ebonie Moore approached, driving her black
Laser, which she parked along Lilac Street in back of the red
sports car that was parked there. She and her passenger,
Takheema Williams, who had dated the defendant, were sitting
in Moore’s car listening to music.
Thereafter, the defendant emerged from the 40-42 Lilac Street
residence and stood near his car. It was at that time that
Corbett told Wells that he wanted to speak with the
defendant. Corbett walked to where the defendant was
standing. The two talked for a short time, they shook hands
and then a shot was fired. As Corbett turned away from the
defendant, he fell face down onto the sidewalk. Wells and
Moore then watched as the defendant stood over Corbett, with
his arm fully extended and a pistol in his hand, and fired
several additional shots into Corbett’s body. The defendant
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.
Wells then ran to Moore’s parked car, banged on the window
and yelled for Moore to call for an ambulance because, in his
words, "George [the defendant] had just shot John."
Moore and Williams exited the vehicle. Moore attempted to
call for an ambulance on her cellular telephone. She and
Wells then administered cardiopulmonary resuscitation to
Corbett until the police arrived. Williams walked away from
the scene. Shortly thereafter, an ambulance arrived and
transported Corbett to Yale-New Haven Hospital where he was
pronounced dead about eight minutes after his arrival.
Corbett 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
Corbett’s lower back were fatal.
Soon thereafter, Wells and Moore arrived at the hospital
where they told a New Haven police detective that it was the
defendant who had shot Corbett. Within the next few days,
both Wells and Moore gave statements to the police
implicating the defendant as the shooter and selected the
defendant’s photograph from a photographic array, identifying
him as the man who shot Corbett. On December 10, 1997,
Williams gave the police a tape-recorded statement regarding
the December 7, 1997 shooting on Lilac Street.
At trial, the defendant testified that he could not have shot
Corbett because he was living in New York at the time. Both
Wells and Moore testified, however, that they saw the
defendant shoot Corbett. Williams also testified, but her
testimony was inconsistent with the tape-recorded statement
that she had given to the police on December 10, 1997, just
three days after the shooting. Accordingly, her taped
statement and a twenty-one-page transcript of that tape were
admitted into evidence as full exhibits for substantive and
impeachment purposes pursuant to 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).
On April 27, 2000, during the fifth day of jury
deliberations, the jury submitted the following question to
the court: "We would like to hear if Takheema Williams
was ever asked and answered the question: [D]id you see [the
defendant] at the scene?" Outside the presence of the
jury, in discussing the jury’s question with counsel, the
court indicated that it could not find a definitive answer to
that question in its notes. Consequently, the court
determined that the only way to answer the jury’s question
accurately was to listen to the testimony. The court and
counsel then listened to Williams’ in-court testimony. After
doing so, the court stated that "the literal answer is
no, she was never asked that question." The court went
on to state, however, that Williams’ Whelan
statement had been admitted for substantive and impeachment
purposes, and that on pages eighteen and twenty of the
transcript of that statement, she did testify as to what she
saw. The court then heard comment from counsel on its
proposal to direct the jury to those particular pages of
Williams’ Whelan statement. Counsel for the state
supported the court’s proposal. Defense counsel did not. He
argued that the court should instruct the jury only that the
answer to its question is "no," but that it could
consider Williams’ entire Whelan statement as
substantive evidence. Defense counsel specifically objected
to the court’s "highlighting" the portions of the
statement that the court and the state believed answered the
jury’s question because defense counsel believed "that
would be, in a sense, marshaling the evidence."
Thereafter, the court had the jury brought back to the
courtroom where it explained to the jury that "[c]ounsel
and I have reviewed the taped testimony of the witness,
Takheema Williams, presented to you here in court, and the
answer to your question: ‘[W]as she asked, [D]id you see [the
defendant] at the scene?’ is no. She was not asked during her
testimony here in court." The court then went on to
remind the jury that Williams’ prior tape-recorded statement
and the transcript of that statement were in evidence. The
court referred the jury to its written copy of the court’s
instructions regarding the use of the Whelan
statement. It then directed the jury to the tape-recorded
statement and to pages eighteen and twenty of the transcript
of Williams’ Whelan statement, stating: "[B]ut
again, it’s up to you as to what weight you accord to any
evidence. I just want to remind you of that."
(Footnotes
omitted.) State v. Figueroa, supra, 74
Conn.App. 166-70.
On
August 14, 2006, the petitioner filed a pro se petition for a
writ of habeas corpus, in which he claimed that his
convictions were invalid because the criminal statutes he was
convicted of violating were void for lack of enactment
clauses. The habeas court, Swords, J., granted the
respondent’s motion to dismiss the petitioner’s petition on
January 17, 2007. The petitioner appealed the habeas court’s
judgment, and his appeal was dismissed. Figueroa v.
Commissioner of Correction, 123 Conn.App. 862, 3 A.3d
202 (2010), cert. denied, 299 Conn. 926, 12 A.3d 570 (2011).
The
petitioner initiated the present habeas case by filing a pro
se petition for a new trial in the judicial district of New
Haven on August 27, 2002, which the trial court construed as
a petition for a writ of habeas corpus. On December 1, 2015
the court, Robinson, J., transferred the present matter from
the New Haven judicial district to this court. The
petitioner’s assigned counsel filed a second revised amended
petition on August 15, 2017, in which he claimed that the
petitioner’s constitutional right to trial by jury and due
process of law was violated when the trial court invaded the
province of the jury by improperly responding to the jury’s
factual question during jury deliberations. The petition also
alleged an ineffective assistance of trial counsel claim on
the grounds that trial counsel’s performance was deficient in
that he ...
