Gaines v. Comm'r of Correction

• Citation: 125 Conn.App. 97,7 A.3d 395
• Decision Date: 16 November 2010
• Docket Number: No. 30699.,30699.
• Parties: Norman GAINES v. COMMISSIONER OF CORRECTION.
• Court: Appellate Court of Connecticut

7 A.3d 395

125 Conn.App. 97

Norman GAINES

v.COMMISSIONER OF CORRECTION.

No. 30699.

Appellate Court of Connecticut.

Argued Sept. 14, 2010.

Decided Nov. 16, 2010.

C. Robert Satti, Jr., supervisory assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Gerard P. Eisenman, senior assistant state's attorney, for the appellant (respondent).

James B. Streeto, assistant public defender, for the appellee (petitioner).

BISHOP, LAVINE and DUPONT, Js.

BISHOP, J.

The respondent, the commissioner of correction, appeals from the judgment of the habeas court granting in part the revised second amended petition for a writ of habeas corpus filed by the petitioner, NormanGaines. The respondent claims that the court incorrectly determined that the petitioner had established ineffective assistance of trial counsel and that he was prejudiced by counsel's purported ineffectiveness. We disagree and, accordingly, affirm the judgment of the habeas court.

In the underlying criminal matter, the petitioner was charged with two counts of murder in violation of General Statutes § 53a-54a, one count of capital felony in violation of General Statutes § 53a-54b (8), and one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a. After a trial by jury, he was found guilty of all four counts and sentenced to a total effective term of life imprisonment without the possibility of release.¹ In the petitioner's direct appeal, the Supreme Court affirmed the judgment. State v. Gaines, 257 Conn. 695, 778 A.2d 919 (2001).

In its opinion, the Supreme Court set forth the factual background as follows: "On October 29, 1996, at approximately 7 p.m., Carl Wright was driving down Maplewood Avenue in Bridgeport between Poplar Street and Howard Street, when two persons crossed the street in front of his car. One of the persons walked to the driver's side of a car parked on the side of the street, and the other person walked to the passenger's side of the car. Both persons then fired multiple gunshots into the parked car. Wright could not identify the race or gender of the shooters because they were wearing hooded sweatshirts, with the hoods pulled over their heads.

"Shortly before the shooting, Tyrell Allen had been walking down Maplewood Avenue toward Howard Street and had spoken to Marsha Larose, who also was walking down the street. Larose stopped to speak to someone in a parked car. Allen continued down Maplewood Avenueand turned right onto Howard Street, at which time he no longer could see Larose or the parked car. Allen then heard approximately twenty gunshots and threw himself to the ground. A short time later, two men ran from the direction of Maplewood Avenue down Howard Street and past Allen. Allen described one of the men as approximately five feet, ten inches tall, light-skinned with a flat nose and medium build and stated that he was wearing an orange or mustard colored hooded sweatshirt. Allen claimed that the other man was wearing a black hooded sweatshirt and was in his twenties.

"At some point after the shooting, Officer Wilfred Torres of the Bridgeport police department received a radio call to proceed to Maplewood Avenue in Bridgeport. Upon arrival, he saw a large crowd surrounding the parked car. The body of a woman, later identified as Larose, lay on the ground near the right passenger side of the car. The body of a man, later identified as Gary Louis-Jeune, was slumped over in the driver's seat of the car....

"The Bridgeport police recovered several spent .22 and .45 caliber casings from the scene of the shooting. The medical examiner also recovered several bullets and bullet fragments from the bodies of the victims. Edward Jachimowicz, a firearms and tool mark examiner with the forensic science laboratory of the Connecticut department of public safety, testified that all of the .22 caliber casings recovered at the scene had been fired from the same gun and that all of the .45 caliber casings had been fired from another gun. He was able to identify several of the bullets recovered from thebodies of the victims as .22 caliber and one of the bullets as .45 caliber. He testified that the .22 caliber bullets most likely were fired from a semi-automatic pistol manufactured by Ruger or Browning.

"Leo Charles testified that, at some time before October 31, 1996, he had an encounter with the [petitioner], [Ronald] Marcellus [a co-conspirator] and 'Nunu' Shipman. He did not indicate where the encounter had taken place. During the encounter, Charles gave his car keys to Marcellus, who told him to give the keys to Shipman. Shipman, however, was unable to drive the car because it had a standard shift. Charles then drove the car to his house in order to show Shipman how to operate the shift. During the drive, Charles saw that Shipman had a .45 caliber gun and that the [petitioner] had a .22 caliber Ruger. When they arrived at Charles' house, Charles went inside. Shipman and the [petitioner] then took Charles' car. Forty-five minutes later, Shipman and the [petitioner] returned to Charles' house. Shipman came to the door, threw a black sweatshirt at Charles and told him to keep it.

"Torrance McClain testified that, in October, 1996, the [petitioner] lived with him at 31 Laurel Court in Bridgeport. Shortly before October 31 that year, Shipman came to 31 Laurel Court, and McClain gave him a key to the basement of a building there, where a .45 caliber gun and a .22 caliber gun were kept. McClain saw Shipman go into the basement and leave with the guns. McClain then went shopping with Eleanor Figueroa and her children. While McClain was shopping, he received a message on his beeper and returned to 31 Laurel Court. When he arrived, the [petitioner], Shipman and others were there. Shipman asked McClain for a ride to a pay telephone on State Street, which McClain provided. After Shipman made a telephone call, McClain and Shipman drove to the scene of the shooting, where they stayed for approximately five

[7 A.3d 398, 125 Conn.App. 102]

minutes. They then returned to 31 Laurel Court. The [petitioner] was there at that time and told McClain that he 'felt good' because 'they killed somebody.' The [petitioner] told McClain that Shipman had used the .45 caliber gun in the killing and that the [petitioner] had used the .22 caliber gun. At some point, Shipman asked McClain for the key to the basement again and Shipman subsequently returned the guns there.

"Figueroa also testified about the day of the shooting. She stated that, in late October, 1996, she was living with her mother-in-law in an apartment at 25 Albion Street in Bridgeport. At some time after 5 p.m., she left the apartment to go shopping with McClain and her three children. After about one and one-half hours, they left the store and headed back to 25 Albion Street. While they were driving, McClain's beeper went off. He dropped her and the children off at 25 Albion Street and left in the car. He returned to 25 Albion Street sometime after midnight.

"Figueroa also testified that, at some point in November or December, 1996, she visited the [petitioner] in jail, where he was incarcerated on charges unrelated to this case. The [petitioner] told her at that time that Larose had been killed because she 'was in the wrong place at the wrong time,' indicating that he could not risk the potential of Larose being a witness to the shooting of Louis-Jeune. The [petitioner] also told her that a .22 caliber gun had been used in the killings. In addition, the [petitioner] told her that he was supposed to be paid $1500 for the killings, but that he never was paid because he had been incarcerated.

"Figueroa further testified that, at some point, the [petitioner] called her from jail and told her to tell Shipman's uncle to dispose of the .22 caliber gun because it had been used in the shooting. She testified that the [petitioner] had made that request on the sameday that Marcellus was arrested in connection with the killings, and that the [petitioner's] attitude concerning his involvement in the killings had become more serious after Marcellus' arrest. The [petitioner] also told her that he had disposed of the clothes that he had worn during the shooting.

"Figueroa testified during cross-examination that drugs and guns were kept in the basement of the building at 31 Laurel Court, and that she and the [petitioner] sold drugs together at that location. She also testified that she had encouraged the [petitioner] to confess about his involvement in the killings and had told him that she could provide him with the name of a police officer to whom he could 'tell ... what he did for [Marcellus].' During redirect examination, Figueroa testified, without objection, that the [petitioner] and McClain were dealing drugs for Marcellus. During recross-examination, Figueroa testified that McClain was Marcellus' 'lieutenant on the block....'

"Sergeant James Tyler of the Bridgeport police department testified that he had been in charge of the investigation of the shooting and that, as of February, 1997, his investigation had led him to believe that the [petitioner] and Shipman were active participants in the killings and that Marcellus was an accomplice.

"The [petitioner] testified that, at some point after moving in with McClain and Figueroa in July, 1996, he had begun selling drugs to earn money to pay rent to Figueroa. He testified that Figueroa had given him the drugs and that, after he had sold them, he would give her the money. He also testified that Figueroa was the lieutenant until she moved to 25 Albion Street in late August, 1996, at which time McClain became the lieutenant. "The [petitioner] testified that, in early October, 1996, problems had arisen between him and McClain. The[petitioner] testified that he had been present during a conversation between McClain and Marcellus when McClain told Marcellus that the [petitioner] had given McClain $900 in...