Gaines v. Comm'r of Corr.

Decision Date18 September 2012
Docket NumberNo. 18760.,18760.
CourtConnecticut Supreme Court
PartiesNorman GAINES v. COMMISSIONER OF CORRECTION.

306 Conn. 664
51 A.3d 948

Norman GAINES
v.
COMMISSIONER OF CORRECTION.

No. 18760.

Supreme Court of Connecticut.

Argued April 17, 2012.
Decided Sept. 18, 2012.
*


[51 A.3d 952]


Timothy J. Sugrue, assistant state's attorney, with whom were C. Robert Satti, Jr., supervisory assistant state's attorney, and, on the brief, 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).


ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.**

NORCOTT, J.

[306 Conn. 665]The respondent, the commissioner of correction, appeals, following our grant of his petition [306 Conn. 666]for certification,1 from the judgment of the Appellate Court affirming the habeas court's granting of the petition for a writ of habeas corpus filed by the petitioner, Norman Gaines, on the basis that his trial attorney, Alexander Schwartz, had rendered ineffective assistance of counsel. Gaines v. Commissioner of Correction, 125 Conn.App. 97, 111, 7 A.3d 395 (2010). On appeal, the respondent contends that the petitioner failed to establish by a preponderance of the evidence both that Schwartz had rendered ineffective assistance of counsel and that the alleged ineffective assistance was prejudicial to the petitioner. We disagree and, accordingly, affirm the judgment of the Appellate Court.

The record reveals the following relevant facts, which the habeas court reasonably could have found, and procedural history. On October 29, 1996, at approximately 7 p.m., Gary Louis–Jeune and Marsha Larose were shot and killed by two gunmen while sitting in a car parked on the side of Maplewood Avenue in Bridgeport. State v. Gaines, 257 Conn. 695, 697–98, 778 A.2d 919 (2001). Several months after the shooting, the petitioner was [306 Conn. 667]arrested in connection with the murders and charged with capital felony in violation of General Statutes (Rev. to 1995) § 53a–54b (8), two counts of murder in violation of General Statutes § 53a–54a, and conspiracy to commit murder in violation of

[51 A.3d 953]

General Statutes §§ 53a–54a and 53a–48. Id., at 696, 701, 778 A.2d 919.

During the petitioner's criminal trial, the state presented eyewitness testimony from Carl Wright, who was driving down Maplewood Avenue just prior to the murders and witnessed two people walk over to the car in which Louis–Jeune and Larose were sitting and open fire—one individual from the driver's side of the vehicle and the other from the passenger side. Id., at 697, 778 A.2d 919. Wright, however, was unable to identify the race or the gender of either of the shooters because they were wearing hooded sweatshirts with the hoods pulled over their heads. Id. The state also presented testimony from Tyrell Allen, who was walking on a nearby street at the time of the shooting. Id., at 697–98, 778 A.2d 919. Allen heard about twenty gunshots and, thereafter, witnessed two men run past him from the direction of the shooting. Id. Allen testified that one of the men was approximately five feet, ten inches tall, light-skinned with a flat nose and medium build and wearing an orange or mustard colored hooded sweatshirt, and that the other man was in his twenties and was wearing a black hooded sweatshirt. Id., at 698, 778 A.2d 919.

The chief medical examiner determined that both victims had died from gunshot wounds. Id. Additionally, the police recovered several spent .22 and .45 caliber casings from the scene and also recovered several .22 caliber bullets and one .45 caliber bullet from the victims' bodies. Id., at 698–99, 778 A.2d 919. The forensic science laboratory of the department of public safety determined that all of the .22 caliber casings had been fired from the same gun and that all of the .45 caliber casings had been fired from another gun. Id., at 699, 778 A.2d 919.

[306 Conn. 668]The state also presented testimony from Leo Charles, who stated that, at some time prior to October 31, 1996, he had an encounter with the petitioner and the petitioner's codefendants in the murder trial, Ronald Marcellus and “Nunu” Shipman.2Id. Specifically, Charles testified that, during that encounter, he had seen the petitioner with a .22 caliber gun and Shipman with a .45 caliber gun, that Shipman and the petitioner had borrowed his car for forty-five minutes, and that, when they returned the car, Shipman had given him a black sweatshirt. Id. Torrance McClain, with whom the petitioner had been living at the time of the shooting, then testified that he had given Shipman access to a basement area in which a .22 caliber gun and a .45 caliber gun were kept, and that he saw Shipman go into the basement and leave with the guns prior to the shooting. Id. McClain further testified that, shortly after the shooting, the petitioner had told him that he “ ‘felt good’ ” because “ ‘they killed somebody’ ” with those guns. Id., at 700, 778 A.2d 919.

The state also presented the testimony of Eleanor Figueroa, McClain's girlfriend at the time of the murders, who stated that the petitioner had told her that Larose had been killed because he could not risk leaving a potential witness to the shooting of Louis–Jeune, and that Larose simply “ ‘was in the wrong place at the wrong time....’ ” Id. She also testified that the petitioner had asked her to have Shipman's uncle dispose of the .22 caliber gun because it had been used in the shooting. Id., at 701, 778 A.2d 919. Figueroa further testified that drugs and guns were kept in the basement of McClain's residence

[51 A.3d 954]

and that she, McClain and the petitioner had sold drugs in that location for Marcellus. Id. The state concluded its case with the testimony of the police officer in charge of the investigation of the murders, [306 Conn. 669]who stated that his investigation had led him to believe that the petitioner and Shipman were active participants in the killings and that Marcellus was an accomplice. Id.

In his defense, the petitioner testified that he had begun selling drugs with McClain and Figueroa to earn money to pay them rent. Id., at 702, 778 A.2d 919. He also testified that, in early October, 1996, he and McClain had had a dispute over the difference of $100 worth of drug sale proceeds. Id. He further testified that Figueroa had visited him while he was incarcerated on unrelated charges and repeatedly tried to get him to admit that he was involved in the murders. Id. He stated that he believed that she was joking about his involvement until he learned that Marcellus had been arrested and had signed a statement implicating him. Id. Finally, the petitioner testified that he did not kill the victims, that no one ever asked him to kill the victims and that he had no reason to kill the victims. Id., at 703, 778 A.2d 919.

On the basis of the foregoing evidence, the jury convicted the petitioner on all four counts, and he was sentenced to an effective term of life imprisonment without the possibility of release.3 This court upheld all four convictions on appeal. See id., at 697, 778 A.2d 919. Thereafter, on June 30, 2008, the petitioner filed an amended petition for a writ of habeas corpus, alleging that his confinement was illegal because he had been denied the effective assistance of counsel. The petitioner based his claim on, inter alia,4 Schwartz' failure to complete [306 Conn. 670]an adequate pretrial investigation. Specifically, the petitioner contended that, had Schwartz conducted an adequate investigation, he would have discovered two witnesses who could have provided an alibi for the petitioner at the time of the murders.

At the habeas hearing, the habeas court heard the following testimony relevant to the present appeal. First, the petitioner testified that he had spoken with an investigator, whom Schwartz had hired, concerning his criminal case. The petitioner admitted that the “investigator had investigated things that the petitioner had discussed

[51 A.3d 955]

with him.” The petitioner did not, however, specify which “things” had been discussed and investigated. He further testified that he had given the names “Madeline Rivera” 5 and “Calvin Shipman” 6 to Schwartz but did not discuss the context in which he had provided those names. Finally, he testified that, [306 Conn. 671]because he could not remember where he was or what he was doing on the night of the murders, had Schwartz conducted an adequate investigation of the names that the petitioner had provided, he would have discovered that Rivera, who is Figueroa's sister, and her mother, Luz Davila, would have been able to explain his whereabouts at the time in question.

Rivera then testified that, on the night of the murders, she was moving from her apartment, which was adjacent to McClain's apartment, into a new apartment. At approximately 4 p.m. that evening, she left her children in the care of the petitioner in order to go with Davila and Shipman to rent a U–Haul truck for the move. When she returned to her apartment with the truck, the petitioner and Shipman spent several hours, making several trips with the truck, moving Rivera's belongings out of the old apartment and into the new one. The group completed the move shortly after midnight, Rivera returned the truck, and, when she arrived back at her new apartment, she saw that the petitioner, who had again stayed behind to watch the children, was asleep. Rivera also testified that the petitioner did not leave for any reason at any time on the evening of the move. Furthermore, she testified that, although she had no corroborating evidence to establish the date of her move, such as a lease for the apartment into which she was moving or the rental agreement for the truck, she was sure that the petitioner and Shipman were helping her move on that night because she remembers seeing the television news report regarding the murders while she was in the process of moving.

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